The Domestic Violence Amendment Act 14 of 2021 (the "new Act"), effective since April 14, 2023, has introduced significant changes to the original legislation. Among these changes, the Act has expanded the section originally titled "definitions" to include "definitions and interpretations."
The new Act brings forth significant amendments to its predecessor. Additional acts of domestic violence, including spiritual abuse, elder abuse, and coercive and controlling behaviour, exposing a child to domestic violence, and unauthorized entry into a complainant's workplace or place of study have been included in the new Act.
Spiritual abuse is defined as inciting harm against the complainant based on their religious or spiritual beliefs, amounting to advocating hatred, preventing the complainant from exercising their constitutional right to freedom of conscience, religion, thought, belief, and opinion, including the external manifestation of their religious or spiritual convictions and manipulating the complainant's religious or spiritual convictions to justify or rationalize the abuse.
Elder abuse is defined in alignment with the Older Persons Act, making the abuse of older individuals a punishable offense. Notably, this extension of protection to the elderly is a crucial aspect of the Act.
The new Act explicitly acknowledges that exposing a child to domestic violence constitutes an act of domestic violence. This provision safeguards children when perpetrators intentionally subject them to witnessing or experiencing the effects of domestic violence.
Controlling behaviour refers to actions that make the complainant dependent on or subservient to the respondent, including isolating them from support sources, exploiting their resources for personal gain, depriving them of independence means, or regulating their daily conduct. Coercive behaviour entails compelling the complainant to refrain from lawful actions or forcing them to engage in activities they have a lawful right to avoid.
There are many procedural amendments too in order to simplify the process of obtaining protection orders and to ensure that court personnel offer improved assistance. These amendments primarily seek to strengthen the safeguards offered to survivors of domestic violence and to address practical challenges, gaps, and inconsistencies that have emerged since the inception of the Domestic Violence Act.
A substantial amendment allows complainants of domestic violence to electronically apply for protection orders without the necessity of physically appearing in court. According to Section 4(1)(bb) of the updated Act, any complainant has the right to apply for a protection order on an ex parte basis. The application can be submitted to the clerk or sent electronically to the court's jurisdictional electronic address (email). This change is expected to alleviate the challenges faced by complainants in urgently seeking protection.
Notably, the new Act emphasizes the role of the court manager in preparing a roster for clerks, ensuring applications are addressed promptly, even outside regular court hours. This roster is communicated to local police stations and posted on the Department of Justice website. Urgent applications after hours are directed to the designated magistrate by the supervisor on duty or court manager.
The new Act introduces the concept of a "domestic violence safety monitoring notice," which can be applied for concurrently with a protection order or before its final issuance, especially when complainants share a joint residence with respondents. The notice is submitted to the clerk of the court, and its application can involve electronic submission. The clerk's service methods now include hand delivery, email, SMS, MMS, and various social media platforms.
The new Act expands the jurisdiction of all courts to areas where either the complainant or respondent resides, studies, carries on business, or where the cause of action arose. Furthermore, provisions have been made for electronic submission of applications and even allows a minor child to bring an application without adult assistance or consent.
The new Act enables courts to address applications outside ordinary hours if there's a reasonable belief that immediate action is necessary to prevent harm to the complainant. The clerk is responsible for capturing all application details in an integrated electronic repository, and a magistrate considers both protection order and safety monitoring notice applications simultaneously.
The introduction of the domestic violence safety monitoring notice empowers the South African Police Service (SAPS) to check on complainants regularly. The notice also allows SAPS to use reasonable force to overcome any resistance during visits to the joint residence.
Crucially, the amendment removes the phrase 'undue hardship may be suffered,' replacing it with 'complainant is suffering or may suffer harm' due to domestic violence. The new Act includes provisions for an investigation by the Family Advocate or designated social worker to determine if a child requires care and protection.
A warrant of arrest is now issued simultaneously with the interim protection order, remaining on file until served on the respondent. Service of documents must occur within specific timeframes, whether electronically or in person. The Act also addresses the seizure of weapons, directing the clerk to refer evidence to the relevant Station Commander for consideration under the Firearms Control Act.
To enhance efficiency, the Act introduces the option of electronic submission of documents, and provision has been made for the hearing of evidence via audiovisual link. For variation applications, the court must be satisfied that circumstances have materially changed, show good cause, and ensure proper service to the respondent.
These amendments bring much-needed improvements to the Domestic Violence Act, streamlining the process of obtaining protection orders and making it more accessible to complainants, including children. The electronic repository ensures the secure storage and retrieval of documents, ultimately contributing to the Act's effectiveness in addressing the pervasive issue of domestic violence in South Africa.
These amendments are important as they simplify the process for individuals seeking protection orders against perpetrators. This constitutes a crucial measure in enhancing personal safety against violence and abuse. The amendments are geared towards ensuring accountability among personnel responsible for assisting individuals reporting domestic abuse or seeking protection orders.
In essence, these amendments strive to offer improved protection to those facing domestic violence. However, their effectiveness hinges on the adherence of SAPS and court personnel to the prescribed directives and accurate procedural implementation.
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