Domestic Violence – abuse may lead to murder

Domestic Violence, a threat to our society

The You and Huisgenoot Magazines recently asked my opinion and comment about a tragic murder that took place, when an ex-boyfriend killed his ex-girlfriend.  The story appears in the latest You and Huisgenoot magazines.

Catherine Krog (28) had overcome her addiction to drugs and turned over a new leaf for her three-year-old daughter, Bella.

She seemed confident and successful, had her own staff recruitment agency and tried to help friends who were addicts.

But the young mother knew that her ex-husband, Clint Walley (50), was stalking her and it was only a matter of time before he killed her, because no one could stop him.

Her body was found on 8 September in her Durban home. Next to her lay Walley’s body. He’d shot her in front of their daughter and killed himself.

So many people saw it coming, Cat’s parents, the mother and sister that she adopted, her private investigator, the police, friends, neighbours and relatives. Her ex-boyfriend was threatening and stalking her and facing charges for an unlicensed firearm, kidnapping their child and the court released him on bail of R 2000. The full story can be read in the YOU and Huisgenoot magazines of 16 September 2011.

Many abused women might feel they have no one to turn to for help, but divorce attorney Bertus Preller disagrees. “The law is there to protect you. There are many different legal avenues for victims of abuse to explore. Running away or continuing to endure the pain by staying in an abusive relationship are not the only problems. A restraining order is a court order designed to stop harassment. As a court order it prevents the abuser from contacting you or approaching you in any way. “If the abuser breaks the stipulations they can face a penalty or even jail time”. While the stipulations and restrictions in any order are different, violating it puts the culprit in contempt of court which means immediate arrest and the offender could be fined or sent to jail. “Usually the perpetrator will be arrested, taken into custody and will have to appear in court to explain why the order was violated. A suitable punishment, either a fine or prison sentence, will then be decided on”, Preller says.

Domestic violence and abuse can happen to anyone, regardless of gender yet the problem is often overlooked, excused, or denied. This is especially true when the abuse is psychological, rather than physical. Emotional abuse is often minimized, yet it can leave deep and lasting scars.

What is a domestic relationship?

You can have a domestic relationship with – someone you are or were married to; your parents or guardian; any family member(s); including your own child(ren); anyone you have lived with, whether you were married to that person or not; your life partner of the same sex; someone you went out with, even for a short time, or had sex with; or someone with whom you share a child.

What is domestic violence?

The following may be regarded as domestic violence:

  • sexual abuse (whether you are married or not);
  • physical abuse or assault (slapping, biting, kicking, and threats of physical violence);
  • damage to property or anything you value;
  • stalking (when the person follows or approaches you or your children repeatedly);
  • economic abuse, that is, when the other person keeps money to which you are legally entitled from you in
    an unreasonable manner by –
    • refusing to pay or share the rent or mortgage bond for the home you share; or
    • disposing of any property (household goods) in which you have interest, without your permission;
  • emotional abuse (that is, degrading or humiliating behaviour, including repeated insults, belittling, cursing and threats);
  • any other controlling or abusive behaviour which poses a threat to your safety, health or well-being.

What are my options if I am being abused?

You have the right to –

  • apply for a protection order at the nearest police station or
  • magistrate’s court; or
  • lay a criminal charge at the police station and apply for a protection order.

What is a protection order?

It is an order issued by a court at your request, ordering a person with whom you have or had a domestic relationship, to stop abusing you. It may also prevent the person from getting help from any other person to commit such acts. An interim protection order can also be issued at any time of the day or night for your protection.

Who can apply for a protection order?

Any victim of domestic violence may apply. Children, and if they are too young, a parent or guardian, or any person acting on behalf of someone who is responsible for them, but with their permission.

What can I do if an abuser disobeys a protection order?

Phone the South African Police Service. Thereafter a statement will be taken from you. Provide the police with the warrant of arrest you received together with the protection order (if you have lost it, apply at the court for another one). If you are in immediate danger the abuser will be arrested, otherwise the abuser will be given a notice to appear in court the next day.

About Bertus Preller

Tel: 021 422 1323

email: bertus(@)divorceattorney.co.za

Bertus Preller is a Divorce  Attorney in Cape Town and 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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Domestic Violence – the role of the Police

The role of the police in fighting acts of domestic violence

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)).

Conclusion

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.

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

F: 086 572 8373

C: +27 (0) 83 443 9838

E: bertus@divorceattorney.co.za; W:  www.divorceattorney.co.za; Twitter: www.twitter.com/edivorce;

Facebook: www.facebook.com/divorceattorneys; Skype: divorceattorney

Domestic Violence

Domestic Violence

It happens frequently that one parent of a child would abuse the provisions of the Domestic Violence Act to block the contact that the other parent have towards their child. This was an issue that was dealt with in the case of Narodien v Andrews 2002 (3) SA 500 (C).

The matter came before the Court for review at the request of one of the magistrates of the Cape Town magistrate’s court. The applicant and respondent were the biological parents of a boy, L, aged five, born out of wedlock. The applicant father had applied to the magistrate’s court in terms of the Domestic Violence Act 116 of 1998 (the Act) for an interim protection order against the respondent mother. The affidavit accompanying the application had, however, contained no details of any ‘acts of domestic violence’ committed by the respondent. The parties were embroiled in a dispute concerning the applicant’s access to his son. The respondent had allegedly agreed on various occasions to allow the applicant to see the child but would not allow the child to spend an entire weekend with his father. The applicant wanted L to spend every second weekend with him from Friday 6 pm to Sunday 6 pm. The relief applied for by the applicant in the magistrate’s court was that he be granted ‘access to his son’ as stipulated.

The magistrate hearing the matter had issued an ‘interim protection order’ against the respondent. The order did not mention any acts of domestic violence but simply ordered the respondent not to prevent the applicant from having contact with his son. On the return date of the ‘interim protection order’ the respondent opposed the issuing of a ‘final protection order’. It appeared from the evidence that the respondent was unwilling to allow the child to remain with his father for an entire weekend because this would mean that he would miss out on the Sunday morning church service to which his mother habitually took him and, further, that the respondent would be unable to limit the opportunities which the child had to interact with the applicant’s family. The magistrate hearing the matter, however, confirmed the ‘interim protection order’, ordering the respondent to allow the applicant access to his son from Friday 7 pm to Sunday 4 pm every alternate weekend.

The respondent subsequently applied for the setting aside of the ‘protection order’. The magistrate hearing that application varied the previous order made by granting the applicant access to the child from 7 pm Friday to 7 pm Saturday and from 11 am Sunday to 5 pm Sunday every alternate weekend until such time as access could be determined by the High Court. The applicant had been present at court but, due to a misunderstanding, was not in court when the matter was heard. The ‘variation order’ was accordingly granted in his absence. The magistrate subsequently requested the High Court to set aside the ‘variation order’ on the grounds that the order had been incorrectly granted in the absence of one of the parties. Following upon queries by the Court as to the legitimacy of the ‘protection order’, the magistrate referring the matter for review stated that the definition of ‘domestic violence’ in the Act included any controlling or abusive behaviour towards the complainant where such conduct harmed or could cause imminent harm to the safety, health and well-being of the complainant and that the conduct complained of by the applicant in the instant matter had fallen within this definition. The magistrate stated further that the court had been satisfied that undue emotional hardship would be suffered by the applicant if a protection order were not issued immediately.

The court found that the High Court in its capacity as upper guardian of all minor children within its area of jurisdiction, however, had an inherent common-law jurisdiction mero motu to review the so-called ‘protection orders’ granted by the magistrate’s court in the instant matter, as such orders directly concerned the interests of a minor child within its area of jurisdiction.

While the concept of ‘domestic violence’ was defined very broadly in s 1 of the Act, such definition had to be placed within the context of the Act as a whole and not be viewed in isolation.

An interpretation of s 7(6) of the Act which would empower a magistrate’s court to make ‘stand-alone’ orders concerning access to a minor child in cases where the parents were embroiled in a dispute about access amounted to a radical departure from the relevant common-law principles and statutory provisions relating to child welfare and statutory interpretation. Such interpretation of s 7(6) of the Act could even mean, theoretically, that the magistrate’s court would have territorial jurisdiction to make orders concerning access where the High Court would have no such jurisdiction. This construction offended against the tenet of statutory interpretation that, as far as possible, statutes had to be interpreted so as not to give rise to absurd, anomalous or unreasonable results.

The mischief which s 7(6) of the Act had been meant to address was a lack of an express provision in other family violence legislation for the courts granting family violence interdicts to make ancillary orders relating to contact with minor children, so ensuring that children at risk were protected from domestic violence and that the protection of the adult applicant was not compromised by arrangements relating to contact between the respondent and any children living with the applicant. This purpose was a far cry from an interpretation of s 7(6) which would empower the magistrate’s court to make a ‘protection order’ under the Act which consisted solely of an order granting access to a minor child or regulating the exercise of such access. Orders concerning access made in terms of s 7(6) had to be ancillary to a ‘protection order’ of the kind envisaged in s 7(1) of the Act. A stand alone order as to access could not legitimately be regarded as falling within the powers vested in the magistrate’s court by s 7(1) (h).

As such it should be noted that a Domestic Violence order may be taken on review to the High Court if there are grounds to do so. To use the provisions of the Domestic Violence Act simply as a measure to block the contact of the other parent is wrong and may therefore be set aside.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za