Coercive and controlling behaviour in the Domestic Violence Act

• Citation: (2023) 140 SALJ 763
• DOI: https://doi.org/10.47348/SALJ/v140/i4a4
• Published date: 08 November 2023
• Pages: 763-794
• Author: Singo, D.
• Date: 08 November 2023

763

https://doi.org/10.47348/SALJ/v140/i4a4

COERCIVE AND CONTROLLING BEHAVIOUR

IN THE DOMESTIC VIOLENCE ACT

DAK ALO SINGO†

Director and Head of Pro Bono Practice, Werksmans Attorneys

This article focuses on two de nitions of domestic viol ence — ‘coercive behaviour’

and ‘controlling behaviour’ — which we re formally introduced into South African

law by the Domestic Violence Amendment Act 14 of 2021. It tracks the legislative

process, including an overview of th e dierent iterations of the denitions as they

appeared in the pre ceding Bills. This i s followed by an analysis of the denitions’

grammatical, conceptual and legal mea nings (including considering applicable foreign

case law), after which various indicators are formulated. Th e article then examines

whether the de nitions are t for purpose by an alysing whether they are con stitutional.

This investigation reveals that the de nitions suer from numerous deciencies: they

are vague, overbroad and ambiguous, rendering them potentially unconstitutional.

However, despite these deciencies, the importanc e of the denitions — informed

by the legislature’s intentions and the prevailing societal context, amongst other

things — is likely to deter any potential constitutio nal challenges disputing their

validity. The articl e concludes by proposing altern ative denitional formulatio ns that,

if implemented, may c ircumvent any potential constitutional challenges.

Domestic Violence Ac t – coercive behaviour – controllin g behaviour –

gender-based violence

‘Gender-based violence is an aront to our share d humanit y.

The unrelent ing murder of women — for no reason othe r than that the y

are women — is steadily corroding the soul of ou r nation.’1

I IN TRODUCT ION

The fabric of South Africa as a society is deeply stained by the murk

of domestic violence in general, and gender-based violence (‘GBV’) in

particular. GBV is such a fundamental societal issue that it was declared

a ‘national cr isis’ in 2018.2 In descr ibing the nature and societal eect of

domestic violence, SachsJ aptly stated:

† LLB (Unisa) LLM (Wits).

1 President Cyr il Ramaphosa ‘Address by President Cy ril Ram aphosa at the

Presidential Summ it on Gender-Based Violence and Femicide’ 1 November

2018, available at https://www.gov.za/speeches/president-cyril-ramaphosa-gender-based-

violence-and-femicide-summit-1-nov-2018-0000, accessed on 22 Ja nuary 202 3.

2 Gender-Ba sed Violence and Femicide Interim Steering Com mittee The

Report of the Presidential Summit against Ge nder-based Violen ce and Femicide, 2018

(2018) 69 (‘GBVF Summit Report’).

(2023) 140 SALJ 763

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764 (20 23) 140 THE SOUTH AFR ICAN LAW JOURNAL

https://doi.org/10.47348/SALJ/v140/i4a4

‘All crime h as harsh eec ts on society. What d istingu ishes domestic viole nce

is its hidden, repetitive cha racter and its immea surable ripple eects on ou r

society a nd, in particu lar, on fami ly life. It cuts acro ss class, race, cu lture and

geography, and is all the more per nicious becaus e it is so often concealed

and so frequently goes unpun ished.’3

Domestic violence is a ‘sy stemic, pervasive and overwhelmi ngly

gender-specic’ phenomenon that ‘reects and rei nforces patriarchal

dominat ion, and does so in a particu larly brutal for m’.4 It inhibits women’s

and girls’ ability to ‘achieve thei r potential in every sphere of social

and productive life’ and denies them the opportunity to enjoy fully the

freedoms guaranteed by the Constitution.5 It is therefore no exaggeration

to say that domest ic violence and GBV are arg uably ‘the most sign icant

societal pla gue of modern South A frica’.6

On 1 August 2018, groups of women and civil societ y led marches

(dubbed ‘#TheTotalShutdown Movement’) to express thei r indignat ion

at the increasing levels of GBV and femicide in South Africa.7 The

marches cu lminated in a Memorandum of Demands being handed over to

President Cyril Ramaphosa, which included a cal l for a national summit

to be convened to address ways in which government, civil societ y and

social movements could work together to eradicate GBV and femicide.8

After the su mmit — and in response to one of the undertakings given at

the summ it9 — the government spearheaded a legislative process aimed at

enhancing and rening the protections available to victi ms of domestic

violence and GBV in terms of the Domestic Violence Act 116 of 1998

(‘DVA’). During this process, the legislature introduced several versions of

the Domestic Violence Amendment Bill that sought to amend the DVA

by, amongst other thi ngs, expand ing existing denitions of domestic

violence and, in some i nstances, introducing new denitions altogether.

This ar ticle focuses on two newly introduced den itions of domestic

violence: ‘coercive behaviour’ and ‘control ling behaviour’. In doing so, it

tracks the leg islative process, a nalyses the concept ual nature of coercive a nd

controlli ng behaviour as forms of domestic violence, and then examines

whether the de nitions are constitut ional.

3 S v Baloyi & others 2 000 (2) SA 425 (CC) para 11.

4 Ibid para 12.

5 National Plan ning Commission (Department: The P residency) National

Development Plan 2030: Our Future — Make it Work (2012) 395.

6 D akalo Singo ‘ Proposed amendme nts to the Domestic Viole nce Act’ available

at https://www.werksmans.com/legal-updates-and-opinions/proposed-amendments-to-the-

domestic-violence-act/, accessed on 22 Januar y 2023.

7 GBVF Summit Repor t op cit note 2 at 69.

8 Ibid.

9 Ibid at 75, where art 5 reads: ‘The exist ing laws and policies applicable to

gender-ba sed violence and fem icide are to be reviewed to ensure that they are

more victi m-centred and r esponsive, and th at the identied legislative g aps are

addressed without delay.’

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COERCIVE A ND CONTROLLING BEH AVIOUR 765

https://doi.org/10.47348/SALJ/v140/i4a4

II OVERVIEW OF THE LEGISLATIVE PROCESS

(a) Coercive behaviour

(i) T he Draft Bill

The denition of ‘coercive behaviour’ rst appeared in the Domestic

Violence Amendment Draft Bill, 2 020 (‘Draft Bill’) published by the

Departme nt of Justice and Constitut ional Development (‘the Department’ )

in March 202 0, together with a public cal l for comments. In thi s Draft Bill,

the denit ion read: ‘“[C]oercive behaviour” means an a ct or pattern of acts

of assault, t hreats, humiliation or other abuse that is used to harm , punish,

or cause fear.’ This wordi ng mirrored a similar den ition published by the

United Kin gdom’s Home Oce in Circul ar003/2013 (‘the UK Circul ar’)

in the following terms: ‘Coercive behaviour is: an act or pattern of acts of

assault, t hreats, humil iation and intimidation or other abuse that is u sed to

harm, punish, or frighten the victim.’10

This denition was inadequate for three reasons. First, in the self-

same circu lar from which the denition appeared to be sourced, it was

specica lly stated that the int roduction of that den ition did not constitute

a legislat ive change. Accordingly, it was ‘not a legal denition’ and did

not enjoy ocial lega l status.11 Secondly, the denition was impermissibly

vague becaus e it lacked sucient clarit y of meaning for a reasona ble person

to understa nd the scope of its application. Lastly, it was overly broad — a

fact that ‘prompted criticism from leading lega l researchers’ in the UK.12

For these reasons, the Draft Bill’s denition wa s unsuitable for practical

implementation.

(ii) The First Bill

A second iteration of the de nition appeared in the more formal ly crafted

Domestic Violence Amend ment Bill, 2020 [B20-2020] (‘First Bill’),

which was published by the National Assembly’s Portfolio Committee on

Justice and Correctional Ser vices (‘Portfol io Committee’) i n September

2020, together w ith a call for comments. The First Bi ll dened coercive

behaviour in the following terms:

10 United Kingdom Home Oce ‘Circula r 003/2013: New government

domestic violence and abuse den ition’ 14 February 2 013, available at h tt p s://

www.gov.uk/government/publications/new-government-domestic-violence-and-abuse-

denition/circular-0032013-new-government-domestic- violence-and-abuse-denition,

accessed on 22 Ja nuary 2023.

11 Da nielle McLeod & St eve Flood ‘Coercive control: Impacts on children

and young people i n the family environment’ D arting ton: Research in Practice

(2018) at 6.

12 A ndy Myhill T he Police Respon se to Domestic Violence: Risk, Discretion, and

the Context of Coercive Control (PhD thes is, City Univer sity of London, 2018) 43.

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