Every day in South Africa there are a significant number of women who are subjected to violence and abuse in their own homes. The Department of Justice and Constitutional Development’s Annual Report states that 209 920 matters were reported for the financial year of 2017/18, a worrying statistic. However, despite this high number, there are many victims who are still too afraid to speak out about their abuse, and so a vast number of women are still suffering, silently and alone. The effects of these abuses are far-reaching and have even led to the killing of innocent women.
The recent video doing the rounds of Mandla "Mampintsha" Maphumulo assaulting his partner, Bongekile Simelane, otherwise known as "Babes Wodumo", has once again brought to light the prevalence and seriousness of domestic violence in South Africa, as well as the stigma that is often attached to it. This story has once again exposed a deeply patriarchal society, which is violent towards women – not exclusively in the physical sense. Society still has a lot of growth to undergo in this regard and this story has highlighted the importance of women empowering and protecting themselves in such a society.
The assault on Babes further highlights that both complainants and perpetrators of domestic violence span race, class, gender, marital status, sexual orientation, age or identity, in our society.
The seriousness of domestic violence can be found in its effects, which goes beyond physical wounds. It creates emotional scars, psychological disturbances and health issues in complainants. It can cause developmental impairment, deep trauma, depression and anxiety, disruption of behaviour, and impaired academic performance in the children who witness such violence. There is also a correlation between HIV infections and domestic violence due to the inability of women to navigate their agency in the abusive relationship. When public figures are being called out for such behaviour, we need to realize the gravity of this issue, and that it is so prevalent because of our deeply patriarchal society. This is ultimately the deeper issue that needs to be urgently and seriously addressed. We can no longer be desensitized to an issue as serious as domestic violence simply due to how regularly it occurs.
While the Domestic Violence Act 116 of 1998 (DVA) exists, a piece of legislation which on paper sufficiently protects women, we must question why the implementation of this legislation is failing to protect women, and why domestic violence remains largely prevalent and poorly responded to. There remains a significant number of women who fail to use the justice system, due to stigma and misinformation/lack of belief in the justice system in relation to reporting domestic violence and abuse.
In terms of stigma, intimate partner violence and abuse are often hidden due to societal and family stigma and practices which includes patriarchal, religious and cultural practices whereby women are still under the guardianship and control of male figures in their families. Many women are thus afraid to disrupt the accepted gender stereotyped norms relating to the position of women within their communities and societies due to a fear of being ostracized and further mistreated. They fear retaliation by their partners, which could include further abuse, legal counter applications of abuse, and assault charges. This results in women being subjected to further trauma.
Under the DVA, protection orders are one way of a woman protecting herself – they are orders which a complainant of domestic violence can apply for in order to prevent their abuser from harming them, or otherwise risk being arrested. Protection Orders can be applied for at any court during court hours but in emergency situations after hour applications can be applied for. Each Police station must have details of the after-hours court officials, as each court must have an after-hours duty manager, clerk and magistrate on call.
At court, the complainant will be required to complete an application form and although it will be helpful to take with your identity documents, supporting documents, such as medical reports, photographs of the injuries, it is not a requirement for the application. Many women do not have these documents as they might have fled the abusive home, however, an order can also be directed to allow a complainant to collect their personal items like school cards, identity documents bank cards, etc.
The application process does not require the services of a lawyer; however, one can be obtained at own cost, from Legal Aid South Africa, or a law clinic, which will be free of charge. Complainants may take a friend or family member with to Court for support, and the clerk of the court will assist the person in filling out the necessary forms and will take them before a Magistrate who will hear the application. The magistrate will decide if an interim order should be granted in the meantime until both parties appear before the court, which is called the return day. It is important that the complainant not miss the return date as the interim protection will lapse and the order will not be made final.
An interim protection order will only come into effect one it has been served on the abuser by a court official, the Sheriff or by SAPS. If the complainant cannot afford the Sheriff’s service cost, they will have to inform the clerk who will ensure that it gets served on the abuser.
Unfortunately, women often withdraw matters as they are economically dependent on the perpetrator, which includes payment of the bond or rental, as they become afraid that they will be left homeless or displaced if separated from their abuser. The DVA does, however, make provision for the abuser to pay emergency maintenance, and expenses that you have been left with as a result of the domestic violence; such as medical and hospital costs, loss of income and rental/bond costs.
In domestic violence and abusive situations women often fear for their life, especially as the abuse may include dangerous weapons. The Court may make an order which allows the police to confiscate the dangerous weapon and the Court may also order that the abuser not to enter the home or shared residence or workplace of the victim. It is, however, important to inform the Court of the presence of any dangerous weapons and that you fear for your life.
In addition, the Court may make the following orders to stop the abuser from committing further abuse:
- Committing an act of domestic violence
- Enlisting the help of another person to commit any such act
- Entering a residence shared by the complainant and the respondent
- Entering a specified part of such a shared residence
- Entering the complainant’s residence
- Entering the complainant’s place of employment
- Preventing the complainant who ordinarily lives or lived in a shared residence from entering or remaining in the shared residence, or a specified part of the shared residence; or
- Committing any other act as specified in the protection order.
If an abuser violates the protection order it is a criminal offence and once arrested, the abuser will be required to appear before the criminal court and can be sent to jail for up to 5 years, or ordered to pay a fine, or both.
Every protection order comes with a suspended warrant of arrest and it only comes into effect when the abuser disobeys the protection order. The police will use the warrant to arrest the abuser.
It is important to note that notwithstanding the protection order, you can always open a criminal case against the abuser for assault, crimen injuria, sexual assault, rape, etc. Irrespective of whether a protection order has been applied for, these crimes do not fall away. What often occurs is that when women report domestic violence at a police station, while they should be given the option of opening a criminal case as well as have their rights explained to them, they are often redirected to the magistrate’s court for a protection order, without being educated about their rights and the option of opening a criminal case. This reveals a great flaw in our policing system, one that is unacceptable.
It is important that we break silence on domestic violence and provide support to victims of violence which will empower them to access the courts for protection.
* Seehaam Samaai is Director of the Women’s Legal Centre, an African feminist legal centre which advances the rights of women through strategic litigation, advocacy, education and training.
** The views expressed here are not necessarily those of Independent Media.