Due to many criticisms of the Prevention of Domestic Violence Act, South African law. In the following, I will critically analyze the Act on the Prevention of Domestic Violence and the Act on Domestic Violence.
Myths and Misconceptions
The severity and violence increases over time unless there is some kind of recognition by the battered woman that she is in an ongoing abusive relationship and that it will not stop until she does something about it. Each of the above myths shows the same theme: they remove responsibility from the abuser's actions by either placing the blame on the woman or by dismissing the problem as a trivial matter, keeping it out of the public eye.
Why Women Stay in Abusive Relationships
It is these traditional family values that keep women in abusive relationships, making it difficult for them to leave. A woman is much more likely to leave if she has a support system for leaving.
The Prevention of Family Violence Act 133 of 1993
- Persons to Whom the Interdict May be Granted
- How to Apply for an Interdict
- Service of the Interdict
- Application to Set Aside or Amend the Interdict
- The Hearing
- Breach of the Interdict
The return of service is attached to the original stop and filed with the clerk or clerk of the court. The applicant is given a copy of the detention as well as the arrest warrant. The applicant must show the peace officer a copy of the detention as well as the attached statement.
Criticisms of the 1993 Act
Definition of Violence
The Act mentions "assault" as an act of domestic violence and it is supposed to be a physical assault. The Act does not indicate whether the category of assault extends to emotional abuse, financial abuse, verbal abuse, stalking or harassment. The Act does not foresee circumstances where a woman will require protection outside her home, for example in the case of stalking where the woman is threatened away from home.
Parties Protected by the Act
However, the law does not solidify the role of the police and the police process in terms of how they should behave in the event of domestic violence. Section 3(1) of the Act allows the police a discretion as to whether or not to execute a warrant, even if it has an injunction. Due to the nature of domestic violence, it can also contribute to apathy.
Maintenance
The abused woman thus receives far less protection if the police are not willing to recognize domestic violence and cooperate by responding to the call for help.
Problems with obtaining an Interdict
- Who may Apply for the Interdict
- Counselling
- Eviction
- Executing a Warrant of Arrest
- Types of Abuse
- Powers of the Court
- Costs
- Marital Rape
- Department of Justice
The 1998 Act sets out the duties that SAP must comply with in terms of section 2 of the Act. The 1998 Act allowed the amendment and repeal of the interdict in terms of Article 10 of the Act. The 1998 Act dealt with the issue of costs in terms of Article 15 of the Act.
Comparison between the Domestic Violence Bill and the 1993 Act
This discussion document was submitted for comments and as a result of the recommendations made, a draft law on domestic violence was created168. The bill states that peace officers can now arrest anyone reasonably suspected of a crime of domestic violence at the scene of the crime. The bill thus ensures that cases of domestic violence must be treated with the sensitivity and credibility they deserve.
Who Can Apply for a Protection Order?
The person filing a request for a protective order may extend to any person who has a material interest in the matter, which may include a teacher, social worker, or health care provider, provided the complainant provides written consent, unless the complainant is a minor; mentally retarded; without feelings; or the person whom the court is satisfied is unable to give the required consent. A minor or any person acting on his/her behalf may apply for a protection order without the assistance of a parent or other guardian.
Application for a Protection Order
214 The court can only issue an interim protection order against the respondent if it is convinced that there is. a) the respondent is committing or has committed an act of domestic violence;215 and (b) unnecessary hardship may be suffered by the complainant as a result of such domestic violence. The interim protection order217 as well as a copy of the application and the record of any evidence218 must be served on the respondent and requested on the specified date to provide reasons why the protection order should not be issued?~9. Even if the court is not convinced that there is prima facie evidence of domestic violence, the clerk must serve copies of the application and supporting affidavits on the respondent who will then have to provide reasons on a specified return date why the protection order should not be issued does not become
Unopposed Applications
The interim protection order only becomes effective after it has been served on the defendant.221 A copy of the interim protection order and the original arrest warrant must also be served on the complainant.222.
Opposed Applications
Witnesses can be questioned at the request of the court or the complainant.225 A defendant who does not have a legal representative is not, however, entitled to directly cross-examine a person who is in a domestic relationship with the defendant.226 The defendant can put any questions to the witness via the court.227 The court will then repeat their interpretation of the question to the respondent to ensure the correctness of the question that is then put to the witness. Thus, the way in which the defendants make inquiries of the court may be less inviting. The court clerk must then serve the original protection order on the respondent, and a copy of the order and the arrest warrant must be served on the complainant.229 Copies of the order and the arrest warrant must then be served on the police station of the complainant's choice.230.
Attendance at Court Proceedings
Another arrest warrant may be issued to the applicant if the first one has been executed or revoked or lost or destroyed, if the applicant submits a written statement explaining why the warrant is necessary for her protection. 231. Pursuant to Article 7 of the Act, the court may prohibit the defendant from: i) committing any act of domestic violence;. li) obtaining the assistance of another person to carry out any such act:. iii) entering the apartment shared by the complainant and the respondent, if this is in the best interests of the complainant; iv) entry into a certain part of such shared residence;. vi) entering the complainant's workplace;. vii) preventing the complainant, who usually lives or has lived in the shared dwelling, from entering or remaining in the shared residence or a specified part of the shared residence; or viii) service of any other act as specified in the protection order.234. The court may issue a protection order even if other legal remedies are available to the applicant.
Warrant of Arrest
There may be cases where the police officer does not believe that there are reasonable grounds to arrest the respondent. By giving the respondent this notice, the police do not have wide discretion when it comes to arresting the respondent on domestic violence charges. Even if the police officer does not believe that there is no basis for enforcing the order, the respondent must still appear, n.
Seizure of Arms and Dangerous Weapons
Amending or Setting Aside the Protection Order
Penalties
The penalty ranges from a fine or imprisonment for up to 5 years or both, if the person has breached a condition in the conservation order by committing domestic violence. 26o. Where a person makes a statement under section 8 (4)(a) relaying events where the respondent has breached the terms of the protection order and those accounts of the events are false, or where a person contravenes section 11 (2)( a ) and (b) then that person shall be liable to a fine or to imprisonment for a term not exceeding 2 years or to both for such offence.261.
Criticisms of the 1998 Act and Recommendations for Effective Procedure
The police play a key role in helping victims of domestic violence. The police should inform the public about the seriousness of domestic violence and what it means as a member. The police should also liaise with court officials regarding the filing of an order of protection.
The Role Of The Mediator
Couples experiencing violence in their relationship need to find a way to move away from the violent behavior and the mediator should be able to facilitate this transition. The mediator must be able to understand the parties' position and have empathy if necessary286. The mediator should be able to bring a new approach to resolving the dispute and suggest new solutions to be developed by the parties.
Problems Associated With Mediation In Domestic Violence Disputes
One party wants to delay the resolution of the dispute as long as possible;. One side or the other believes that a trial will fully vindicate its position; In such a case, it may be wise to hold a meeting and discuss the abuse with each party.
Guidelines For Mediators In Domestic Violence Disputes
The Screening Process
298 The mediation program may not be suitable if after one session an agreement is entered into that is unenforceable and does not adequately meet the parties' needs. The possibility of a mediation agreement can be discussed and the enforceability of the agreement must be disclosed to the parties. In addition to explaining the mediation process, the mediator should also discuss other options available to the parties to help them through these violent times.
The Mediation Hearing
The terms of the agreement should be structured to protect the victim from further abuse. To ensure the enforcement of the mediation agreement, the parties should periodically report back to the mediator on their progress. It will also be useful to report back to determine the effectiveness of the mediation used in the domestic violence conflict and whether there should be a change to the mediation agreement.
Strube MJ 'The Decision to Leave an Abusive Relationship' in Hotaling GT Finkelhor D Kirkpatrick JT and Straus MA Coping with Family Violence - Research and Policy Perspectives Sage Publications Inc. Fedler J 'Provoking Domestic Violence through the Prevention of Family Violence Act 1993 - A Review After One Year in Business South African Law Journa/231. Rowe K “The Limits of the Community Law Center: Why Domestic Violence Cases Should Not Be Mediated,” 1985 (34) Emory Law Journal 855.
