Domestic violence and abuse can occur among heterosexual couples, same-sex couples, as well as any people living together in the same household. It is important to note that while women and children are the most victimized, men are also abused, especially verbally and emotionally, although sometimes physically too. Domestic violence occurs in all age ranges, ethnic groups, and class levels.
In the past, the police have been criticized for not responding adequately to cases of domestic violence. In an attempt to rectify this, the legislature enacted the Domestic Violence Act 116 of 1998 (the Act). Legislators placed particular obligations on the police in the Act in an effort to challenge their long history of neglect of domestic violence cases (Lisa Vetten ‘Addressing domestic violence in South Africa: Reflections on strategy and practice’ www.un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/vetten.vaw.pdf). This article takes a look at the role that police officials should play in domestic violence cases.
The Domestic Violence Act
The aim of the Act, as stated in its preamble, is
‘to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act’.
This legislative intervention was seen as progressive and necessary to protect mostly the rights of women and children. However, the Act has not brought about the expected results as acts of domestic violence continue to occur. Domestic violence is defined in the Act as
‘physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent where the parties do not share the same residence, or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant’.
Domestic violence is defined broadly in the Act in order to capture the most common abusive behaviours that victims are exposed to on an almost daily basis in South Africa. Domestic violence cases are regarded as civil cases, hence domestic violence is not defined as a crime in the Act. This means that there is no specific crime of domestic violence in South Africa. Such a criminal case will be conducted separately from the civil proceedings in the domestic violence case.
The role of the police
To ensure that cases of domestic violence are taken seriously, the Act places an obligation on members of the South African Police Service (SAPS) to monitor, enforce and oversee the implementation of the requirements of the Act. In terms of s 2 of the Act, any member of the SAPS at the scene of an incident of domestic violence or as soon thereafter as is reasonably possible, or when the incident of domestic violence is reported, must –
- assist or make arrangements for the complainant to find a suitable shelter and obtain medical treatment;
- hand a notice containing information as prescribed to the complainant in his official language; and
- if it is reasonably possible, to explain the contents of such notice as well as the remedies that are at the disposal of the complainant, and the right to lodge a criminal complaint if applicable.
Section 2 requires police officers to make an immediate assessment of the need for first aid or other medical assistance. This implies that there must be cooperation between the police and the Department of Health to make ambulances available. This section does not, however, give clear directives on how the police should go about ensuring that the victim does obtain medical attention. It might also be desirable for the police official to accompany the victim to get medical attention in order to ensure that the continuity and integrity of the evidence is maintained.
Furthermore, the police have a duty to explain the investigation processes and procedures to the complainant and make it clear to the complainant that domestic violence cases are taken seriously. They should also emphasise the importance of the complainant being truthful and forthcoming with relevant information that may assist the police in protecting his rights. The police officials are also obliged in terms of s 2(c) to explain to the complainant –
- the possible remedies that are open to the complainant;
- that the complainant has the right to apply for a protection order in terms of s 4 of the Act; and
- the right to lay criminal charges if the domestic violence act concerned constitutes a crime.
If it is reasonably possible, the police official handling a domestic violence case must assist the complainant in his language in terms of s 2(b) and (c) of the Act. It would be difficult, if not impossible, for the police to carry out the requirements of s 2 if they are not adequately trained to deal with domestic violence cases. It is doubtful whether members of SAPS are sufficiently trained to carry out their duties as required by the Act.
It is important that police officials entrusted with dealing with domestic violence cases receive special training to enable them to carry out their obligations as required by the Act. The police should also be adequately trained to conduct domestic violence cases efficiently. It has been recommended that when an incident of domestic violence is reported to SAPS, the statement-taking should include five essential questions on –
- the history of the abuse;
- a description of the most recent incidence of domestic violence;
- any medical attention sought by the complainant as a result of the current incident or previous incidents or any other evidence to show that an act of domestic violence has taken place;
- the complainant’s knowledge of any previous criminal records of the accused; and
- the complainant’s knowledge of any orders against the accused, including protection orders, interdicts and maintenance orders (see Lillian Artz ‘Better safe than sorry: Magistrates’ views on the Domestic Violence Act’ Crime Quarterly No 7 2004).
Furthermore, s 3 of the Act empowers police officials to arrest at the scene of domestic violence without a warrant if there is a reasonable suspicion that an offence committed has elements of violence.
‘Failure to comply with [the requirements of s 2] constitutes misconduct and the National Commissioner of the SAPS is required to submit six-monthly reports to parliament detailing the number and nature of complaints against the police for failing to adhere to these statutory obligations; disciplinary proceedings instituted and steps taken as a result of recommendations made by the Independent Complaints Directorate’ (Vetten).
State’s obligation to protect against domestic violence
In terms of s 12(1)(c) of the Constitution, everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. The Constitutional Court in S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC) para 11 has held that:
‘Read with s 7(2), s 12(1) has to be understood as obliging the state directly to protect the right of everyone to be free from private or domestic violence. Indeed, the state is under a series of constitutional mandates which include the obligation to deal with domestic violence: To protect both the rights of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone not to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way’.
By promulgating the Act, the state was conscious of the fact that domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. The importance of eradicating domestic violence and abuse in our society cannot be overstated. In order to comply with its constitutional mandate, the state entrusted the police with the duty to protect victims of domestic violence.
‘[SAPS] is one of the primary agencies of the state responsible for the protection of the public in general, and women and children in particular, against the invasion of their fundamental rights by perpetrators of violent crime’ (Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)).
Domestic violence remains a major social ill in South Africa and requires law enforcement agencies to work aggressively to prevent it. The Act is an expression of the state’s commitment to eliminate domestic violence. However, in order for the implementation of the Act to be successful, police officials must be trained to enable them to make informed decisions that best protect victims of domestic violence and abuse. In order for police officials to be able to adequately inform victims of their rights in terms of the Act and to explain certain information, they need detailed understanding of the issues involved and an ability to put information across in a clear and simple manner. Domestic violence cases involve particular investigative skills, which the state must ensure that members of the police are equipped with.
Article by Clement Marumoagae LLB (Wits) LLM (NWU) who is a candidate attorney at the Wits Law Clinic – De Rebus.
Compiled by Bertus Preller a Divorce and Family Law Attorney in Cape Town who has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.
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