Legal Talk

Is unlawfulness a requirement for domestic violence

The seemingly unstoppable rise of incidences of gender-based violence in South Africa can no longer be ignored nor should it be tolerated. As civil society, we can and must have our voices heard so that more is done to stem the horrific increase of this scourge plaguing South African women.

Recent media reports have indicated that an emergency joint sitting of parliament's two houses is scheduled for 18 September 2019. President Ramaphosa wants parliament to see what laws can be looked at in an attempt to curb gender-based violence.

The Domestic Violence Act and the Constitution seeks to protect our rights, including the right to equality, freedom and security of person and protect violence against women and children. The DV Act describes domestic violence as "such conduct, which harms or may cause imminent harm to the safety, health or wellbeing of the complainant.

Emotional, verbal or psychological abuse means a pattern of degrading or humiliating conduct towards a complainant including repeated insults, ridicule or name calling, repeated threats to cause emotional pain, repeated exhibits of obsessive possessiveness or jealousy which is such as to constitute serious invasion of the complainant's privacy, liberty, integrity and security."

Our courts have been clear that "domestic violence in our society is utterly unacceptable. It causes severe psychological and social damage and there is clearly a need for an adequate legal response to it". During 2016, I represented a female client in an opposed domestic violence matter.

My client obtained an interim domestic violence protection order against her husband. The husband denied that he was physically abusive towards his wife but during his evidence, he admitted to "pushing and pulling his wife causing her to fall to the floor". After a lengthy trial, the presiding magistrate found on a balance of probabilities that indeed there was evidence physical abuse by the husband and granted a final (permanent) protection order in favour of the wife.

The husband then took the magistrate's decision on appeal to the high court, where the judgment was delivered in September 2019. In his defence, the husband's legal representative argued that there was no unlawfulness in his client's conduct and therefore he could not be said to have committed an act of physical abuse.

The high court disagreed. It said that the Act did not require unlawfulness to be requirement for domestic violence. The high court said that Domestic Violence Act refers to conduct that harms and should not be seen in the context of assault as envisaged in criminal law.

The criminal and delictual tests were thus not applicable in domestic violence. The high court also said abuse is often a pattern of coercive controlexhibited by the man over the abused woman.

This control continues to be exerted when there is active or passive abuse and when the domestic violence is in abeyance.The high court accordingly found the magistrate's earlier decision to be rational and justified and dismissed the appeal.

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.