Tough new laws on domestic violence offer fresh hope for victims

New legislation offering greater protection to victims of domestic abuse could be implemented by the end of the month as the government steps up its battle against gender-based violence.

The announcement comes as the annual international 16 Days of Activism Against Gender-based Violence (GBV) campaign gets under way on Friday, and activists are hopeful the raft of amendments will make a difference to many people.

The Domestic Violence Amendment Act enables greater monitoring of perpetrators and provides for applications for protection orders on behalf of victims with the written consent of the complainant.

It also grants more powers to adults who suspect a child is being exposed to violence at home, and makes failure to report domestic abuse an offence.

Advocate Praise Kambula, head of the promotion of the rights of vulnerable groups at the Department of Justice, said President Cyril Ramaphosa signed the Act on January 23, though the issuing of the proclamation and implementation date would be announced once police and various other authorities were trained in correctly applying the law.

“Our biggest challenge is poor implementation of the law. We are failing to bridge the gap between paper legislation and action,” Kambula said, adding the amendments sought to better understand the situation.

Basically we are hitting back at the argument that domestic violence is a family matter. We are saying ‘yes, it is a family matter, so let’s create an offence out of that’
— Advocate Praise Kambula

Victims are often reluctant to seek protection or report incidents of abuse; they are emotionally conflicted because the perpetrator often is someone they love: a husband, the father of her children and possibly someone she is financially dependent on.

“They feel shock or denial, shame or embarrassment. And that makes them reluctant to act immediately,” Kambula said. “A protection order is issued with an automatically suspended warrant for the arrest of the offender. This warrant at the moment can only be executed at the request of the survivor,” she added.

“But in future, for example, if a woman comes to you for help and her husband shows up and starts banging on the door and shouting, you, as an interested party, can get that warrant enacted without her consent,” Kambula said.

What cannot be controlled or predicted, she said, was the reaction of the respondent. Some are antagonised by a protection order, some don’t care and others feel threatened.

With that in mind, an added measure is the immediate revoking of an alleged perpetrator’s bail is if it is established that they lied or misrepresented the situation in any way, and they would be jailed until the case was finalised, Kambula said.

The amendment also provides for a monitoring notice to be issued should the magistrate regard a victim as being in extreme danger. Police would be required to make regular contact or check-ins with the victim to ensure their safety. This could also be done electronically without the knowledge of the perpetrator, Kambula said.

“Through the Amendment Act we are acknowledging the relationship between perpetrator and victim, and so it looks at ways of catching the offender without the co-operation of the victim by enabling the courts to act in situations where she doesn’t want to, or is unconscious, by allowing someone else to act on her behalf. It’s an acknowledgment that we cannot curb violence in a domestic setting without increasing the accountability of people in all directions,” Kambula added.

“Basically we are hitting back at the argument that domestic violence is a family matter. We are saying ‘yes, it is a family matter, so let’s create an offence out of that’.”

Successful implementation required buy-in from social workers, police, doctors, teachers, neighbours and others, Kambula said.

Social worker Ntswaki Shika of Khulisa Social Solutions wants the new legislation implemented as soon as possible.

“We have been doing a lot of education in communities on GBV. And as people better understand what it is and feel less helpless, not only have we experienced more people coming forward but there has been a sudden appearance of men who are reporting that they are victims of domestic violence.

“At the moment they have to report it at the police station but when things change they will be able to report directly to us and we can assist them,” Shika said. “I think the implementation will make things a lot easier. Right now women who have fallen victim feel such conflict, and many believe that bringing a protection order is too harsh. And if she does, you have the abuser telling her ‘I am not afraid of this paper’. Now she can get help in that situation when she wants to know what to do.”

Kambula said another important development was the implementation of the Criminal and Related Matters Amendment Act 12 of 2021 on August 5, which tightens the law regarding bail in cases involving domestic abuse.

Carina Coetzee of the National Prosecuting Authority told the Sunday Times she has already seen a difference since the implementation of that law.

A past challenge, she said, was repeated situations where a woman would report domestic abuse and the perpetrator would be arrested, only to be released on bail a few hours later.

“We have seen the value in keeping her partner in jail for long enough for her to break out of the trauma bonding that happens in the home. It’s kind of a Stockholm syndrome situation whereby the perpetrator maintains control. If we are able to keep him away, she will be more willing to co-operate in the prosecution,” said Coetzee.

“The changes mean a lot. If a murder occurs [under a protection order] — previously the sentence was 15 years, now it’s automatically life.”

This also applies to gang rape, serial rape and child murder.

Miranda Jordan, an activist from Wo+Men Against Child Abuse said the new legislation was hugely welcome, and would be of great help when enacted — particularly in relation to the protection of children.

“Often in cases of domestic violence, children are neglected and sometimes also abused. So giving more power to NGOs and placing an obligation on outsiders to step in and do something will actually save lives,” she said.

Presidency spokesperson Vincent Magwenya said the SA Police Service had already updated its National Instruction on Domestic Violence to give effect to some provisions in the Amendment Act but there were some aspects that could not be dealt with until the regulations were finalised.