Positive and Helpful Amendments to the Domestic Violence Act 1998
The Domestic Violence Amendment Bill (the Bill) was introduced in the National Assembly in September 2020 but has yet to be signed into law by the President. There are various positive and helpful amendments presented in the bill. The Bill will come into operation on a date fixed by the President through the proclamation in the Gazette. The concept and definition of domestic violence has been broadened extensively in the Bill. It now includes spiritual abuse, elder abuse, coercive behaviours, controlling behaviour, and exposing or subjecting children to behaviour listed in the domestic violence definitions clause. It also makes provision for conduct that harms, or inspires the reasonable belief that harm may be caused to the Complainant or a related person. Some of the amendments in the Bill are summarised below: Elder abuse, sexual harassment, and spiritual abuse has now been defined Elder abuse refers to abusive behaviour in a relationship with an older person and can include financial abuse, physical abuse, emotional abuse, as well as controlling behaviours like social isolation or intentional and unintentional neglect. It unfortunately happens frequently that parents invite their children to live with them and after a short while elder abuse commences. The Bill aims to provide the necessary protection to the elderly. ‘Sexual harassment is a separate section under ‘Sexual abuse’ and inter alia means: Unwelcome sexual attention from a person who knows or ought to reasonably know that such attention is unwelcome; Unwelcome suggestions, gestures messages and remarks; Implied and expressed promises or reward for complying with a sexually oriented request. There have also been various court cases recently where pastors, priests, and other religious leaders have been charged with inter alia, rape and or sexual assault and invariably it happens that over a period of time there has been the use of spiritual or beliefs and practices to control and dominate a person. An interdict can now be obtained as soon as there has been spiritual abuse. Duty to report commission of domestic violence. It is an offence should a person fail to report his / her knowledge that an act of domestic violence has been committed against a child, person with a disability or an elderly person. Arrest by peace officer A peace officer may, without a warrant, arrest any person at the scene of an incident of domestic violence, and may enter the premises where an element of violence has allegedly been committed during an incident of domestic violence without a warrant. Positive duty on those in the health care and education sector. The Bill places a positive duty on those in the health and education sector to screen, counsel, and provide emergency medical treatment to a victim. Online application and service An application may be brought by submitting an online affidavit as prescribed, and may be brought outside ordinary court hours if the court has a reasonable belief that the complainant may suffer harm. The interim protection order may be served by the clerk of the Court electronically. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
What is harassment according to the law?
The Domestic Violence Act 116 of 1998 (“the Act”) was enacted to recognise that domestic violence is a serious social evil. Because there is a high incidence rate of domestic violence within South Africa and victims of domestic violence are among the most vulnerable members of society, the Act seeks to afford the maximum protection from domestic abuse that the law can provide. The Domestic Violence Amendment Bill (“the Bill”) was introduced to Parliament in September 2020. The Bill amends and inserts certain definitions, and further provides for the manner in which acts of domestic violence and matters related thereto must be dealt with by certain functionaries, persons and Governmental departments. The definition of “harassment” in the Act and in the Bill differ significantly. The definition of “harassment” in the Act is as follows: ‘“harassment” means engaging in a pattern of conduct that induces the fear of harm to a complainant including— repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be; repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues; repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant’. In terms of the Bill, “harassment” now means— ‘directly or indirectly engaging in conduct that the respondent knows or ought to know— causes harm or inspires the reasonable belief that harm may be caused to [a] the complainant or a related person by unreasonably—(i) following, watching, pursuing or accosting the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be; (ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means whether or not conversation ensues; or (iii) sending, delivering or causing the delivery of letters, packages, facsimiles, electronic mail, texts, photos, videos, recordings or other objects to the complainant or a related person, or leaving them where they may be found by, given to, or brought to the attention of, the complainant or a related person; or amounts to sexual harassment of the complainant or a related person’. The most prominent changes in the definition of “harassment” are as set out below. Harassment now includes both direct and indirect conduct. This assists a court that is grappling with a harassment application where the conduct of the perpetrator does not technically fall within the ambit of direct harassment. In terms of the Bill, the definition of harassment is now extended to include conduct that the perpetrator knows or ought to know causes harm or inspires the reasonable belief that harm may be caused. Therefore, a perpetrator can no longer hide behind the guise that he or she did not know that the conduct causes harm or inspires the reasonable belief that harm may be caused. The word ‘repeatedly’ is removed in the Bill. This means that a perpetrator need not repeatedly engage in conduct that falls within the definition of harassment. This change can, therefore, be interpreted to mean that a single act could fall within the ambit of ‘harassment’ in terms of the Bill. The Bill includes as ‘harassment’ conduct that causes harm or inspires the reasonable belief that harm may be caused to the victim or a related person. Therefore, if a perpetrator harasses someone related to the victim, this will also constitute harassment of the victim. To summarise, the Bill introduces several changes to the definition of ‘harassment’ in the Act. These changes are positive, as they widen the ambit of ‘harassment’ to cover more situations where conduct could amount to harassment, thereby allowing a court to adequately deal with a perpetrator. Reference List: The Domestic Violence Act 116 of 1998. The Domestic Violence Amendment Bill. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)