Fifth draft of Domestic Violence Bill (30 September 1998)
Fifth draft (30/9/98)
REPUBLIC OF SOUTH AFRICA
(As submitted by the Portfolio Committee on Justice (National Assembly))
(MINISTER OF JUSTICE)
[B75 - 98] BILL
To provide for the [granting] issuing 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 of his wife;] and for matters connected therewith.
PREAMBLE
RECOGNISING that domestic violence is a serious crime against society; that many persons are regularly beaten, tortured, and in some cases even killed by their partners or cohabitants; that many victims are unable to leave abusive situations due to social and financial factors; that victims come from all social, economic, cultural, ethnic and religious backgrounds; that children suffer deep and lasting emotional effects from exposure to domestic violence, even when they are not assaulted themselves; that the health and welfare of the elderly and disabled is at risk because of incidents of domestic violence and neglect; that many people are subject to abuse based on their actual or perceived race, colour, religion, sex, gender, sexual orientation, disability or age;
RECOGNISING FURTHER that the majority of victims of domestic violence are women; that many pregnant women are assaulted; that the home is often the most violent place for women; that many women caught in the cycle of violence are most at risk of being killed by their partners when they attempt to leave the abusive relationship; that domestic violence is an obstacle to achieving gender equality; that the training of all police and judicial personnel in the procedures and enforcement of this Act is expected;
AND HAVING REGARD to the Constitution of South Africa and the international commitments and obligations of the State towards ending violence against women and children, it is the intent of this Act to afford the victims of domestic violence the maximum protection from abuse the law can provide and the official response to domestic violence shall communicate the attitude that violent behaviour will not be excused or tolerated.
BE IT THEREFORE 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 any child, who is or has been in a domestic relationship with the respondent and who makes an application in terms of section 4; (ii)]
(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); (xxiv)
(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; (xv)
[(xxv)] ( ) "[victim] complainant" means any person [who alleges to have been] who is or has been in a domestic relationship with a respondent and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of the [victim] complainant;
(v) "court" means any court contemplated in the Magistrate's Courts Act, 1944 (Act No. 32 of 1944) or any family court established in terms of an Act of Parliament; (xiii)
( ) "damage to property" means the wilfull damaging or destruction of property belonging to a [victim] complainant or in which the [victim] complainant has a vested interest;
(vi) "dangerous weapon" means any weapon as defined in section 1 of the Dangerous Weapons Act, 1968 (Act No. 71 of 1968); (xii)
(vii) "domestic relationship" means a relationship between a [applicant] [victim] complainant and a 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, dating or customary relationship, [which includes but is not limited to] including an actual or perceived romantic, intimate or sexual relationship of any duration; or
(g) they share or recently shared the same [household] residence; (xi)
(viii) "domestic violence" means—
(a) physical abuse [or a threat of physical abuse];
(b) sexual abuse [or a threat of sexual abuse];
(c) emotional, verbal and psychological abuse;
(d) economic abuse;
(e) intimidation;
(f) harassment;
(g) stalking;
(h) damage to [or destruction of] property; [or]
(i) entry into the [applicant] [victim] complainant's residence without consent, where the parties do not share the same residence; or
(j) any other controlling or abusive behaviour towards a [victim] complainant,
that harms the health, safety or wellbeing of the [applicant] [victim] complainant [or any child in the care of the applicant and includes but is not limited to]. (x)
(ix) "economic abuse" [means but is not limited to] includes—
(a) the unreasonable deprivation [or threatened deprivation] of [any or all] economic or financial resources to which a [applicant] [victim] complainant is entitled under law or which the [applicant] [victim] complainant requires out of necessity, including household necessities for the [applicant] [victim] complainant [and any child], and mortgage bond repayments or payment of rent1 in respect of the shared [household] residence, where such deprivation causes imminent harm to the [victim] complainant; or
(b) the unreasonable disposal [or threatened disposal] of household effects or other property in which the [applicant] [victim] complainant has an interest, where such disposal causes imminent harm to the [victim] complainant; (v)
(x) "emergency monetary relief" means compensation for monetary losses suffered by a [applicant] [victim] complainant [and] [any child] at the time of the issue of the interim or final protection order as a result of the domestic violence, [and includes but is not limited to] including—
(a) loss of earnings;
(b) medical and dental expenses;
(c) [moving] relocation and accommodation expenses;
(xi) "emotional, verbal and psychological abuse" means a pattern of degrading or humiliating conduct towards a [victim] complainant, [that includes but is not limited to] including—
(a) repeated insults, ridicule or name calling;
(b) repeated threats to cause emotional pain; or
(c) the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the [applicant] [victim] complainant's privacy, liberty, integrity or security; (vi)
(xii) "harassment" means engaging in a pattern of conduct that induces the fear of harm to a [applicant] [victim] complainant [and includes but is not limited to] including—
(a) watching, or loitering outside of or near the building or place where the [applicant] [victim] complainant resides, works, carries on business, studies or happens to be;
(b) repeatedly making telephone calls or inducing another person to make telephone calls to the [applicant] [victim] complainant, whether or not conversation ensues;
(c) repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the [applicant] [victim] complainant[’s home or work]; (xxi)
(xiii) "intimidation" means uttering or conveying a threat, or causing [any person] a [victim] complainant to receive a threat, which induces fear; (xiv)
(xiv) "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); (xvii)
(xv) "peace officer" means a peace officer as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977); (xxiii)
(xvi) "physical abuse" means any act or threatened act of [assault] physical violence towards a [victim] complainant; (vii)
(xvii) "prescribed" means prescribed [by or] in terms of [this Act] a regulation made under section xx; (xxii)
(xviii) "protection order" means an order [granted] issued in terms of section 5 or [10] 6 but, in section 6, excludes an interim protection order; (iv)
(xix) "residence" includes [but is not limited to] institutions for children, the elderly and the disabled; (xxv)
(xx) "respondent" means any person who is or has been in a domestic relationship with [the] a [applicant] [victim] complainant and [against whom the applicant has obtained or is endeavouring to obtain a protection order in terms of section 5 or 10] who has committed or allegedly committed an act of domestic violence against the [victim] complainant; (xviii)
(xxi) "sexual abuse" [means but is not limited to] includes any sexual conduct or threatened conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the [applicant] [victim] complainant; (xix)
[(xii) "shared household" means a residence or household where the applicant and respondent live or lived together in a domestic relationship; (viii)]
(xxiii) "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; (iii)
(xxiv) "stalking" means [but is not limited to] repeatedly following, pursuing, or accosting the [applicant] [victim] complainant; (i)
xxv "this Act" includes the regulations;
[and (xx)
(xxvi) "warrant of arrest" means a warrant contemplated in section 11. (xvi)]
Duty to assist and inform [victim] complainant [and applicant] of rights
2. [(1)] Any member of the South African Police Service must, 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, [must—
(a) inform the [victim] complainant as follows:
"You have the right to request the assistance of a member of the South African Police Service in order to protect yourself and your children, and the member is obliged to provide you with information on how to obtain a protection order. You may also request the member's assistance in locating and taking you and your children to a place of safety, including a shelter, the home of a family member or friend, or any other place of safety. If you or your children are in need of medical treatment, you have the right to request the member to assist you in obtaining such medical treatment.
A protection order can be obtained from the Magistrate's Court at any time of the day or night and will be served on the abuser free of charge. You may request the court not to disclose your address to the abuser. The abuser can be ordered to pay emergency monetary relief and any or all contact with you or your children may be prohibited. You may also request the court to evict the abuser or to prohibit the abuser from preventing you to enter the shared household. This order is of a temporary nature, and if you wish it to be confirmed, you will be required to appear in court at a later date. If you or your children require any counselling or support, you should contact an organisation in your area which can offer these services to you and your children. You also have the right to lodge a criminal complaint against the abuser, if a criminal offence has been committed against yourself or your children. You may do this now, or at any time in the future.
Should you obtain a protection order, or lodge a criminal complaint, in which false facts are knowingly alleged, you may be convicted of an offence. If you do not understand any of the above information, you may request more detail from myself or from any other member of the South African Police Service that you may be more comfortable with"];
(a) render such asistance to the [victim] complainant as may be required in the circumstances, including assisting or making arrangements for the [victim] complainant to find a suitable shelter and to obtain medical treatment;
(b) if it is reasonably possible to do so, hand a [printed copy of the explanation] notice containing information as prescribed to the [victim] complainant in the official language of the [victim] complainant's choice; and
(c) if it is reasonably possible to do so, explain to the [victim] complainant the content of such notice in the prescribed manner, including the remedies at his or her disposal in terms of this Act and the right to lodge a criminal complaint, if applicable.
Or (option):
(c) if it is reasonably possible to do so, inform the complainant as follows:
"You have the right to apply to a court for a protection order to prevent ......... (state name of person having allegedly committed the act of domestic violence) from committing an act of domestic violence towards you. Your rights and the steps in this regard are set out in the notice which have been handed to you. You may also request the South African Police Service to assist you to obtain such an order, and the clerk of the court will also assist you with the procedures which must be followed. If ...........(state name of person having allegedly committed the act of domestic violence) has assaulted you or committed any other crime, you may also lodge a criminal complaint against him or her, and the South African Police Service will assist you lodge such complaint.".
[(2) Upon the report of a breach of a protection order to any member of the South African Police Service, the said member must inform the applicant of the right to lodge a concurrent 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, or upon the report of a breach of an existing protection order, the clerk of the court must inform the applicant of the right to lodge a concurrent 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] respondent [at the scene of an incident of domestic violence] whom he or she reasonably suspects of having committed an offence containing an element of violence against a [victim] complainant.
Application for protection order
4. (1) [An applicant] Any [victim] complainant may in the prescribed manner apply to the court for [an] a [interim] protection order [contemplated in section 5 in a form substantially corresponding to Form 1 of the Schedule].
(2) If the [victim] complainant is not represented by a legal representative, the clerk of the court must inform the [applicant] [victim] complainant, in the prescribed manner,—
(a) of the relief available in terms of this Act; and
(b) of the right to also lodge a criminal complaint against the respondent, if a criminal offence has been committed by the respondent.
[(3) The application referred to in subsection (1) must be made by way of an affidavit in which must be stated—
(a) the facts on which the application is based;
(b) the nature of the order applied for; and
(c) the name of the Police Station at which the applicant is likely to report any breach of the protection order.]
[(4)] (3) Notwithstanding the provisions of any other law, the application may be brought on behalf of the [applicant] [victim] complainant 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 wellbeing of the [applicant] [victim] complainant: Provided that the application must be brought with the written consent of the [applicant] [victim] complainant, except in circumstances where the [applicant] [victim] complainant is—
(a) a minor;
(b) mentally retarded;
(c) unconscious; or
(d) [under the influence of intoxicating liquor or drugs] a person [in respect of] whom the court is satisfied [that such person]2 is unable to provide the required consent.
[(5)] (4) Notwithstanding the provisions of any other law, any [child] minor may apply to the court for a protection order without the assistance of a parent, guardian or any other person.
[(6)] (5) 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, if the court is satisfied that the [victim] complainant may suffer imminent harm/there is a risk of imminent harm to the [victim] complainant..
[(7)] (6) Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application.
[(8) (7) The [applicant] victim may request that his or her physical address be omitted from the protection order, in which instance the court may—
(a) not make an order as contemplated in section [6] 7(1)(e); and
(b) make any directions to ensure that the victim’s physical address is not disclosed in any manner which may expose the victim to (imminent) harm/be prejudicial to the victim.]
[(9)] (7) The application and affidavits must be lodged with the clerk of the court who shall forthwith submit the application and affidavits to a court.
[(10) (9) In considering an application contemplated in subsection (1) the court—
(a) may [require further] consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit; and
(b) must record any such oral evidence [referred to in paragraph (a)].
[Power to grant interim protection order] Procedure following application, and issuing of interim protection order
5. (1) The court must as soon as is reasonably possible consider an application submitted to it in terms of section 4(7) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which shall form part of the record of the proceedings.
[(1)] (2) If the court is satisfied that there is prima facie evidence that—
(a) the respondent is committing, or has committed an act of domestic violence; and
(b) imminent harm may be suffered by the [victim] complainant as a result of such domestic violence,
the court must, notwithstanding the fact that the respondent has not been given notice of the proceedings contemplated in subsection (1), [grant] issue an interim protection order against the respondent, in [a form substantially corresponding to Form 2 of the Schedule] the prescribed manner.
[(2) In exercising its powers in terms of subsection (1), the] If the court is satisfied that imminent harm to the [applicant] victim exists it may, notwithstanding [ not refuse to grant an interim protection order by reason of] the fact that the respondent has not been given notice of the proceedings, grant an interim protection order.]
(3) An interim protection order [granted in terms of subsection (1)] must be served on the respondent in the prescribed manner and must call upon the respondent to show cause on the return date specified in the order why [the interim protection] a protection order should not be [confirmed] issued.
(4) If the court does not issue an interim protection order in terms of subsection (2), the court must direct the clerk of the court to cause certified copies of the application concerned and any supporting affidavits to be served on the respondent in the prescribed manner, together with a prescribed notice calling on the respondent to show cause on the return date specified in the notice why a protection order should not be issued.
[(4)] (5) The return dates referred to in subsections (3) and (4) [must] may not be less than 10 days after service has been effected upon the respondent [in terms of section 9(1)]: Provided that the return date referred to in subsection (3) may be anticipated by the respondent upon not less than 24 hours' written notice to the [victim] complainant and the court.
(6) An interim protection order shall have no force and effect until it has been served on the respondent.
(7) A copy of the application referred to in section 4(1) and the record of any evidence noted in terms of subsection (1) must be served on the respondent together with the interim protection order.
(8) Upon service or upon receipt of a return of service of an interim protection order, the clerk of the court must forthwith cause a certified copy of the interim protection order and—
(a) the original warrant of arrest contemplated in section 8(1)(a) to be served on the [victim] complainant, and
(b) a certified copy of the said warrant of arrest to be served on the [victim] complainant.
[(5) The return date referred to in subsection (3) may be anticipated by the respondent upon not less than 24 hours' written notice to the [applicant] victim and the court concerned.]
[Power to grant] Issuing of protection order
[10] 6. (1) If the respondent does not appear on [the] a return date contemplated in section 5(3) or
(4), and [the interim protection order must be confirmed] if the court is satisfied that—
(a) proper service has been effected [upon] on the respondent; and
(b) it appears from the application that the respondent has committed or is comitting an act of domestic violence,3
the court must issue [and] a protection order [must be issued] in [a form substantially corresponding to Form 4 of the Schedule] the prescribed form.
(2) If the respondent appears on the return date in order to oppose the [confirmation of the interim] issuing of a protection order, [the matter must be adjourned to enable the clerk of the court to notify the [applicant] victim of the date of the hearing] the court must proceed to hear the matter and—
(a) consider any evidence previously received in terms of section 5(1);
(b) consider such further affidavits or oral evidence as it may direct; and
(c) record any such oral evidence.
[(3) The respondent must, not less than 10 days before the date of hearing, file with the clerk of the court an answering affidavit and any supporting affidavits, showing cause as to why the interim protection order should not be confirmed.
(4) A copy of the respondent's answering affidavit and any supporting affidavits must forthwith be served on the applicant.
(5) The applicant, upon receipt of the answering affidavit and any supporting affidavits may, before the date of the hearing, file a replying affidavit together with any supporting affidavits with the clerk of the court, in which must be stated the reasons why the interim protection order should be confirmed.
(6) A copy of the applicant's replying affidavit and any supporting affidavits must forthwith be served on the respondent.
(7) on the date of the hearing, the clerk of the court must submit to the court the—
(a) application for the interim protection order;
(b) interim protection order granted;
(c) respondent's answering affidavit and any supporting affidavits; and
(d) applicant's replying affidavit and any supporting affidavits.
(8) At the hearing of the matter, the court may—
(a) decide the matter on the papers in the absence of either or both of the parties; and
(b) refer the matter for oral evidence.
(9) The clerk of the court must forthwith notify both parties if the matter has been referred for oral evidence and must arrange a date that is suitable to both parties.
(10) At the conclusion of the hearing in terms of subsection 8(a) or (b) the court—
(a) serve the original final order referred to in subsections (1) or (10)(b) on the respondent;
(b) serve a certified copy of the final order referred to in subsections (1) or (10)(b) on the applicant.
(11) If the interim protection order is ratified or amended, the clerk of the court must forward certified copies of the final order and of the warrant of arrest contemplated in section 11(1)(a) to the police station of the applicant's choice.]
(3) The court may, on its own accord or on the request of the [victim] complainant, if it is of the opinion that it is just or desirable to do so, order that in the examination of witnesses, including the [victim] complainant, a respondent who is not represented by a legal representative—
(a) is not entitled to cross-examine directly a person who is in a domestic relationship with the respondent; and
(b) shall put any question to such a witness by stating the question to the court (or another person designated by the court),
and the court (or the authorised person) is to repeat the question accurately to the respondent.
(4) The court must issue a protection order in the prescribed form if it finds, on a balance of probabilities [from the evidence adduced at the proceedings,] that the respondent has committed or is committing an act of domestic violence.
(5) Upon the issuing of a protection order the clerk of the court must forthwith in the prescribed manner cause—
(a) the original of such order to be served on the respondent; and
(b) a certified copy of such order to be served on the [victim] complainant.
[(12)] (6) [If the interim protection order, is confirmed or amended as contemplated in subsection
(1) or [(10)] (3)(a),] The clerk of the court must forthwith in the prescribed manner forward certified copies of [the] any order and of the warrant of arrest contemplated in section [11] 8(1)(a) to the police station of the [applicant] [victim] complainant's choice.
[(13)] (7) Subject to the provisions of section 7(8), a protection order issued in terms of this section remains in force [unless] until it is set aside, and the execution of such order shall not be automatically suspended upon the noting of appeal.4
[Terms] Provisions of protection order [6] 7.(1) [In granting an interim] The court may, by means of a protection order [contemplated] referred to in section 5 or 6, [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] a residence shared by the [victim] complainant and the respondent: Provided that the court may impose this prohibition only if it appears to be in the best interests of the [applicant] [victim] complainant [or any child];
(d) entering a specified part of [the] such a shared [household] residence;
(e) entering the [applicant] [victim] complainant's residence;
(f) entering the [applicant] [victim] complainant's place of employment;
(g) preventing the [applicant] [victim] complainant [or any child] who ordinarily lives or lived in [the] a shared [household] residence as contemplated in subparagraph (c) from entering or remaining in the shared [household] residence or a specified part of the shared [household] residence; 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 protect and provide for the safety, health and wellbeing of the [applicant] [victim] complainant [or any child], including [but not limited to] an order that a peace officer must accompany the [applicant] [victim] complainant to a specified place to [supervise] assist with arrangements regarding the collection of personal property.
Option:[ (3) The court may order that any or all of the prohibitions or conditions contained in the protection order [must] 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 [parties] [victim] complainant and the respondent.
(5) The court may order the respondent to pay emergency monetary relief having regard to the financial needs and resources of the [victim] complainant and the respondent, and such order has the effect of a civil judgment of a magistrate’s court.
(6) (a) The physical address of the complainant must be omitted from the protection order, unless the nature of the terms of the order necessitates the inclusion of such address.
(b) The court may make any directions to ensure that the [victim] complainant's physical address is not disclosed in any manner which may endanger the safety of the [victim] complainant.
[(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.]
(7) If [The] the court is satisfied that it is in the best interests of any child it may—
(a) refuse the respondent contact with [any] such child [if it is shown that contact is not in the best interests of such child]; or
(b) order [structured] contact with such child on such conditions as it may consider appropriate.
(8) (a) The court may not refuse [to grant a protection order on the basis that a single act has been committed or a single threat has been made by the respondent, or on the basis that the acts or threats, when viewed in isolation, appear to be minor or trivial] —
(i) to issue a protection order; or
(ii) to impose any condition or make any order which it is competent to impose or make under this section,
merely on the grounds that other legal remedies are available to the [victim] complainant.
(b) If the court is of the opinion that any provision of the protection order deals with a matter that should, in the interests of justice, be dealt with further in terms of any other relevant law, the court must order that such a provision shall be in force for such limited period as the court determines, in order to afford the party concerned the opportunity to seek appropriate relief in terms of such law.
Warrant of arrest upon issuing of protection order [and procedure upon arrest of respondent]
[11] 8. (1) [In granting an interim] Whenever a court issues a protection order [contemplated in section 5], the court must 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] the prescribed form; and
(b) suspending the execution of such warrant subject to compliance with any prohibition, condition, obligation or order imposed in terms of section [6] 7.
(2) The warrant referred to in subsection (1)(a) [must] remains in force unless the [interim] protection order is set aside, or it is cancelled after execution.
[(3) Any member of the South African Police Service must—
(a) execute a warrant of arrest [upon its production and] if he or she reasonably suspects upon receipt of an affidavit by the [applicant] victim in a form substantially corresponding to Form 5 of the Schedule [wherein it is stated] that -
(i) the respondent has breached any prohibition, condition, obligation or order imposed in terms of section [6] 7; and
(ii) there is an existence of imminent harm to the victim or any child in respect of whom an order in terms of section 6(3) has been made; or
(b) arrest the respondent if he or she reasonably suspects upon receipt of an affidavit by the [applicant] victim in a form substantially corresponding to Form [6] 5 of the Schedule [wherein it is stated] that—
(i) an interim protection order [has been] issued in terms of section 5 or [that] 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; and
(v) there is an existence of imminent harm to the [applicant] victim or any child in respect of whom an order in terms of section 6(3) has been made.]
[(4)] (3) The clerk of the court must issue the [applicant] [victim] complainant with a second or further warrant of arrest, if [upon] the [applicant filing] victim files an affidavit in the prescribed form in which it is stated that such warrant is required for her or his protection and that the existing warrant of arrest has been—
(a) [the respondent has been arrested] executed and cancelled; or
(b) [the warrant of arrest issued has been] lost or destroyed.
[(5) Subject to the provisions of this Act, all the provisions of the Criminal Procedure Act, 1977, relating to the—
(a) form and manner of execution of warrants of arrest;
(b) arrest;
(c) detention;
(d) search;
(e) release from custody; and
(f) criminal prosecution of the respondent, are with the necessary changes applicable in respect of warrants of arrest issued in terms of subsection (1).]
[(6) A respondent arrested in terms of subsection (3) shall—
(a) not be released—
(i) unless a court orders the release; and
(ii) 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;
(b) 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
(c) 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.]
(4) (a) A [victim] complainant may hand the warrant of arrest together with an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any prohibition, condition, obligation or order contained in a protection order, to any member of the South African Police Service.
(b) If it appears to the member concerned that, subject to subsection (5), there are reasonable grounds to suspect that the [victim] complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent, the member must forthwith arrest the respondent for (allegedly) committing the offence referred to in section 19(1)(a).
(c) If the member concerned is of the opinion that there are insufficient grounds for arresting the respondent in terms of paragraph (b), he or she must forthwith hand a written notice to the respondent which—
(i) specifies the name, the residential address and the occupation or status of the respondent;
(ii) calls upon the respondent to appear before a court, and on the date and at the time, specified in the notice, on a charge of committing the offence referred to in section 19(1)(a); and
(iii) contains a certificate signed by the member concerned to the effect that he or she handed the original notice to the respondent and that he or she explained the import thereof to the respondent.
(d) The member must forthwith forward a duplicate original of a notice referred to in paragraph (c) to the clerk of the court concerned, and the mere production in the court of such a duplicate original shall be prima facie proof that the original thereof was handed to the respondent specified therein.
(5) In considering whether or not the [victim] complainant may suffer imminent harm, as contemplated in subsection (4)(b), the member of the South African Police Service must take into account -
(i) the risk to the safety of the [victim] complainant;
(ii) the seriousness of the alleged breach of the protection order; and
(iii) the length of time since the alleged breach occurred.
(6) Whenever a warrant of arrest is handed to a member of the South African Police Service in terms of subsection (4)(a), the member must inform the [victim] complainant of his or her right to simultaneously lay a criminal charge against the respondent and explain to the [victim] complainant how to lay such a charge.
Seizure of arms and dangerous weapons [7] 9. (1) The court [may] must 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 on the evidence placed before it, including any affidavits supporting an [affidavit contemplated] application referred to in section 4[(3)] (1), [contains information to the effect] that—
(a) the respondent has threatened or expressed the intention to kill or injure any person, including himself or herself, whether or not by means of [the said] such arm or dangerous weapon; or
(b) possession of [the said] 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) Any arm or dangerous weapon seized in terms of subsection (1) must be handed over to holder of an office in the South African Police Service as contemplated in section 11(2)(b) of the Arms and Ammunition Act, 1969 (Act No. 75 of 1969), and the court must direct the clerk of the court to refer a copy of the record of the evidence concerned and the affidavit [contemplated] referred to in section 4(3) to the National 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)].
Amendment or setting aside of [final] protection order [by applicant] [12] 10. (1) The [applicant] [victim] complainant or respondent may, upon written notice to the [respondent] other party and the court concerned, apply for the amendment or setting aside of [the final] a protection order referred to in section 6 [in a form substantially corresponding to Form 6 of the Schedule:]in the prescribed manner.5
(2) If the court is satisfied that good cause has been shown for the amendment or setting aside of the protection order, it may issue an order to this effect: Provided that the court shall not grant such an application to the [victim] complainant unless it is satisfied [by affidavit or by oral evidence] that the application is made freely and voluntarily.
[(2)] (3) The clerk of the court must [thereupon] forward a notice as prescribed [in a form substantially corresponding to Form 7 of the Schedule] to the [victim] complainant and the respondent if the [final] protection order is amended or set aside as contemplated in subsection (1).
Proceedings in camera and prohibition of publication of certain information
[16] 11. (1) (a) No person may be present during any proceedings in terms of this Act [must be held in camera] except —
(i) officers of the court;
(ii) the parties to the proceedings;
(iii) any person bringing an application on behalf of the [victim] complainant in terms of section
4(3);
(iv) any legal representative representing any party to the proceedings;
(v) witnesses;
(vi) any person permitted by the court for the purpose of providing support to the [victim] complainant; and
(vii) any other person whom the court permits to be present.
(b) Nothing in this subsection limits any other power of the court to hear proceedings in camera or to exclude any person from attending such proceedings.
(2) [Any party to the proceedings may request the presence of specified persons.] (a) No person shall publish in any manner any information which might reveal the identity of any party to the proceedings.
(b) The court may direct that any further information relating to proceedings held in camera shall not be published.
(c) No direction in terms of this subsection applies in respect of the publication of a bona fide law report which does not mention the names of the parties to the proceedings or of any witness at such proceedings.
[Validity of interim protection order
9. (1) The interim protection order contemplated in section 5 must have no force and effect until it has been served on the respondent in the manner prescribed 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) must 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 must forthwith cause [serve] 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.]
Jurisdiction
[13] 12. (1) Any court [has jurisdiction to grant a protection order as contemplated in this Act,] within the area in which—
(a) the [applicant] [victim] complainant 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;
has jurisdiction to grant a protection order as contemplated in this Act.
(2) No specific minimum period is required in relation to subsection (1)(a).
(3) [An interim protection order granted in terms of section 5 or a final] A protection order [granted in terms of section 10] is enforceable throughout the Republic.
Service of documents
[8] 13. (1) Service of any document in terms of this Act must forthwith be effected in the prescribed manner by[—
(a)] the clerk of the court, [by delivering or presenting for delivery a certified copy of the document [to the respondent] and endorsing the original document to this effect;
(b)] the sheriff [who must 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 must 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.](, as the court may direct).
(2) Service of all documents [are] is at the expense of the State.
Legal representation [17] 14. Any party to proceedings in terms of this Act [has the right to legal representation] may be represented by a legal representative.
Costs [18] 15. No order of costs shall be granted against any party to proceedings in terms of this Act.
OPTION: 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] 16. The provisions in respect of appeal and review contemplated in the Magistrate's Courts Act, 1944 (Act No. 32 of 1944), and the Supreme Court Act, 1959 (Act No. 59 of 1959)[, and the Criminal Procedure Act, 1977,] apply to any proceedings in terms of this Act.
Obligation to report ill-treatment of children
[14] 17. (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,] Any person who examines, [attends to or deals with] treats, attends to, advises, instructs or cares for any child in circumstances which ought to [giving] give 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] ill-treated, or suffers from any injury[, single or multiple, must] the probable cause of which was deliberate, shall immediately [notify a peace officer of those] report such circumstances -
(a) to a police official; or
(b) to a commissioner of child welfare or a social worker referred to in section 1 of the Child Care Act, 1983 (Act No. 74 of 1983).
[(2) No person referred to in subsection (1) is liable in respect of any notification given in good faith in accordance with this section.]
Rape of wife by her husband
[15] 18. Notwithstanding anything to the contrary contained in any law or in the common law, [A] a husband may be convicted of the rape of his wife [irrespective of whether the parties are married according to civil, customary or religious law].
Offences and [penalties] related matters
[20] 19. (1) Notwithstanding the provisions of any other law, any person who—
(a) contravenes any prohibition, condition, obligation or order imposed in terms of section [6] 7;
(b) contravenes the provisions of section 11(2)(a); or
[(b)] (c) fails to comply with any direction in terms of the provisions of [sections 2, 8, 11(3) or 14(1)] section 11(2)(b),
is 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) or (c), to a fine or imprisonment for a period not exceeding [three months] one year or to both such fine and such imprisonment.
(2) Any prosecution in respect of an offence referred to in subsection (1)(b) or (c) shall only be instituted on the written authority of a Director of Public Prosecutions as contemplated in section 13(1)(a) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), or a person designated in writing by such a Director.
(3) The National Director of Public Prosecutions referred to in section 10 of the National Prosecuting Authority Act, 1998, must determine prosecution policy and issue policy directives regarding any offences relating to domestic violence, and such policy and directives must be submitted to Parliament.
Option 1: (4) Failure by a member of the South African Police Service to comply with an obligation imposed in terms of this Act, shall be regarded as misconduct as contemplated in the laws governing the conduct of such member.
Option 2: (4) Failure by a member of the South African Police Service to comply with an obligation imposed in terms of this Act, constitutes misconduct as contemplated in the South African Police Service Act, 1995 (Act No. 68 of 1995), and the Independant Complaints Directorate, established in terms of that Act, must be informed of any such failure reported to the South African Police Service.
Option 3: (4) (a) The South African Police Service must compile a code of conduct for its members to comply with in the execution of their functions in terms of this Act, and the code of conduct must be submitted to Parliament.
(b) Failure by a member of the South African Police Service to comply with an obligation imposed in terms of this Act or the said code of conduct, constitutes misconduct as contemplated in the South African Police Service Act, 1995 (Act No. 68 of 1995), and the Independant Complaints Directorate, established in terms of that Act, must be informed of any such failure reported to the South African Police Service.
Regulations
20. (1) The Minister of Justice may make regulations—
(a) regarding any form or other matter required to be prescribed in terms of this Act; and
(b) regarding generally, all matters which are reasonably necessary or expedient to be prescribed in order to achieve the objects of this Act.
(2) Any regulation made under subsection (1)—
(a) must be submitted to Parliament prior to publication thereof in the Gazette
(b) which may result in expenditure for the State, must be made in consultation with the Minister of Finance; and
(c) may provide that any contravention thereof shall constitute an offence punishable with a fine or imprisonment not exceeding three months..
Amendment of section 40 of Act 51 of 1977, as amended by section 41 of Act 129 of 1993 and section 18 of Act 18 of 1996
21. Section 40 of the Criminal Procedure Act, 1977, is hereby amended by the addition in subsection (1) of the following paragraph:
"(q) who is reasonably suspected of having committed an act of domestic violence as contemplated in section (1) of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element.".
Repeal of laws and savings [21] 22. (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] 23. This Act shall be called the Domestic Violence Act, 1998, and [shall] comes into operation on a date fixed by the President by proclamation in the Gazette.