Bridges and barriers: A five year retrospective on the Domestic Violence Act
| Jurisdiction | South Africa |
| Citation | 2005 Acta Juridica 200 |
| Date | 15 August 2019 |
| Author | Lillian Artz |
| Published date | 15 August 2019 |
| Pages | 200-226 |
Bridges and barriers: A five year
retrospective on the Domestic Violence Act
LILLIAN ARTZ* AND DEE SMYTHE**
University of Cape Town
I INTRODUCTION
In 1998 South Africa’s Parliament passed the DomesticViolence Act (the
DVA),
1
a comprehensive piece of legislation aimed at addressing the high
levels of intimate violence in this country. The drafting of this legislation,
subsequent efforts to monitor its implementation and resultant advocacy
to ensure its effectiveness, have given feminist activists in South Africa an
important opportunity to influence criminal justice policy towards
victims of domestic violence and to inform both procedural and
substantive aspects of the Act. These contributions to the law reform
process in South Africa have not been limited to technical legal
adjustments but have also included the procedural practices of managing
domestic violence cases. Over the past decade the domestic violence law
reform movement has become an important arena from which to
challenge the social and legal understanding of women’s experiences with
domestic violence and to ensure that these experiences are embodied
within law and criminal justice practice. These efforts have shown mixed
results. For some this reinforces their ambivalence about the effectiveness
of law and of the criminal justice system in combating violence against
women. Others, including ourselves, have taken heart from the shifts that
have occurred over the five years since the Act was promulgated, in
respect of criminal justice practice and policies relating to domestic
violence. This is an ongoing and arduous process both for those outside
and inside the system, but there is little doubt in our minds that the law
continues to be an important site for social transformation and the
emancipation of women from violence in this country. In this chapter,
we look at research findings on the implementation of the DVA and our
own engagement with this process through five years of research and
advocacy aimed at improving state responses to domestic violence.
The Domestic ViolenceAct was promulgated with the aim of ensuring
that victims of domestic violence received the maximum protection from
* BA (Hons) (Simon Fraser) MA (Cape Town); Director, Gender, Health & Justice
Research Unit, Faculty of Health Sciences, University of Cape Town.
** BA LLB (Cape Town) JSM (Stanford); Senior Researcher, Gender, Health & Justice
Research Unit, Faculty of Health Sciences, University of Cape Town.
1
Act 116 of 1998.
200
2005 Acta Juridica 200
© Juta and Company (Pty) Ltd
domestic abuse that the law could provide.
2
For this reason, the Act
includes broad definitions of both what constitutes a ‘domestic relation-
ship’
3
and what amounts to ‘domestic violence’.
4
It also introduced
provisions obligating relevant state role-players to act towards this end. In
an attempt to ensure adequate implementation, the Act required both the
National Commissioner of Police and the National Director of Public
Prosecutions to issue national instructions and policy directives requiring
members to fulfill specific functions.
5
This is reinforced through the
imposition of positive legal duties on the police.
6
Failure to comply with
the duties set out in the directives, instructions, and Act constitutes
misconduct, which must be reported to the Independent Complaints
Directorate of the South African Police Service (SAPS). The National
Commissioner is obliged to submit reports to Parliament every six
months regarding the number of complaints received against the police,
disciplinary proceedings instituted as a result of those complaints, and the
outcomes of such proceedings.
7
The promulgation of the DVA raised expectations from victims of
domestic abuse as well as from activists lobbying on their behalf. While
some cautioned that relying solely on the DVA both as a primary
intervention and as a means to eradicate the high levels of domestic
violence in this country, was short-sighted, many saw it as a panacea for
the management of domestic violence.
8
Little was done by the state after
the promulgation of the Act to ensure that other support mechanisms for
victims of domestic violence were put in place. Previous lobbying efforts
surrounding the establishment of more shelters, the strengthening of
2
This is captured in the Preamble to the DVA,which states that the purpose of the Act is
‘to afford the victims of domestic violence the maximum protection for 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, and thereby to convey that the State is
committed to the elimination of domestic violence’.
3
The definition of a domestic relationship contained in s 1(vii) of the DVAincludes people
who are or were married to each other (whether they live together or not); same-sex partners
(whether they live together or not); any person who is or was in an engagement, dating or
customary relationship, including an actual or perceived romantic relationship; intimate or
sexual relationships of any duration; parents of a child; and people who share or recently shared
the same residence.
4
The Act marks a distinctive shift in South African law from denial of the existence of
domestic violence to a legal definition that encompasses women’s experiences of violence.The
list of abuses contained in s 1(viii) of the Act includes, physical, sexual, emotional, verbal,
psychological and economic abuse, intimidation, harassment, stalking, damage to property,
entrance into the complainant’s (victim’s) residence without consent where she is not living
with the respondent (abuser), and any other controlling behaviour which harms, or may cause
imminent harm to the safety, health or well-being of the complainant.
5
Section 18(2) and (3).
6
Section 2.
7
Section 18(4).
8
See D Smythe & P Parenzee ‘Acting against domestic violence’ in B Dixon & EVan der
Spuy (eds) Justice Gained? Crime and crime control in South Africa’s transition (2004) 140 at 158.
201BRIDGES AND BARRIERS
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