Academic literature on the topic 'Domestic Violence Act (no 116 of 1998)'

Violence against women (VAW) in South Africa remains rampant, irrespective of human rights– focused laws passed by the government. This article reflects on the position of two acts: the Domestic Violence Act No 116 of 1998 and Criminal Law (Sexual Offense and Related Matters) Act No 32 of 2007. Both are framed to protect women against all forms of violence. The article discusses the prisms of the two laws, an account of the position taken or interpreted by the reviewed literature regarding the acts, and the findings and recommendations regarding the infrastructure and supports needed to appropriately implement the two acts.

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

Domestic Violence, particularly against women is a social phenomenon which tends to increase from year to year and even from day to day. Many countries enacted special legislation to protect women from domestic violence based on the United Nation Declaration on the Elimination of Violence Against Women (CEDAW). Indonesia adopted the conventions based on the Indonesian Act No. 7 of 1984 on the Convention on the Elimination of All Forms of Discrimination against Women, and issued Presidential Decree No. 9 of 1998 concerning the Commission on Violence against Women. Indonesia then enacted special legislation on domestic violence in 2004, namely Domestic Violence Act 23, 2004. This paper aims to understand how the Domestic Violence Act 23, 2004 protects women victims of domestic violence. The sources of law study are the basic rules and regulations, international conventions which have binding force legally. This is a library research using normative judicial approach, and the analysis is descriptive qualitative. The legal protection of women victims of domestic violence is an obligation, especially for countries that uphold human rights, because of the domestic violence constitutes crimes against humanity that are outstanding. This crime happens at any time either known or not, so it is described as an iceberg phenomenon. In addition, because this matter is private, many people do not want to intervene the matter. The strong culture of not interfering ones’ affairs also influences the police in law enforcement. Police often gives less respect for the report of the victims, and even ask the victims to go back to her husband or family

<p class="IIABSTRAK333">This research is motivated by a thought that domestic violence is every act against a person, especially a woman, resulting in physical, sexual, psychological, and / or neglect of the suffering or suffering of the household. Seeing the fact, should not be much more domestic violence, but the reality of proving domestic violence is increasing. The purpose of the study: first, to know and analyze the violence in the household that the reason for the occurrence of divorce. Second, to know and analyze the authority of the Religious Courts in handling divorce cases caused by domestic violence. Thirdly, to know and analyze the legal conse­quences of the decision of the Religious Courts in divorce cases caused by domestic violence. Researchers use normative juridical approach method. The research specification used qualitative analytical descriptive research. Sources of data in this study are some judges of the Religious Courts. As the primary data are Law Number 1 Year 1974 About Marriage, KHI and interview guidelines in a structured manner. Against secondary data, the data collection method is done by library research. The results show that domestic violence is the reason for divorce. The reasons for divorce caused by cruelty or severe maltreatment have been set forth in the following provisions: a) provided for in Article 39 paragraph (2) of the explanation of Law Number 1 Year 1974 con­cerning Marriage; b) is regulated in Article 19 point (d) of Government Regulation Number 9 Year 1975 concerning the imple­mentation of Law Number 1 Year 1974 concerning Marriage; c) is regulated in Article 116 point (d) KHI (Compilation of Islamic Law). These reasons are included in the category of domestic violence. In other words, domestic violence is part of cruelty or severe abuse. The authority of the Religious Courts to handle divorce cases caused by domestic violence has been regulated in the Compilation of Islamic Law (KHI). The legal consequences of the decision of the Religious Courts in divorce cases caused by domestic violence are stipulated in Article 156 of KHI.</p><p class="IIABSTRAK333">_________________________________________________________</p>Penelitian ini didorong oleh pemikiran bahwa kekerasan dalam rumah tangga adalah setiap tindakan terhadap seseorang, ter­utama wanita, yang mengakibatkan fisik, seksual, psikologis, dan/atau pengabaian penderitaan atau penderitaan rumah tangga. Melihat kenyataan, seharusnya tidak lebih banyak kekerasan dalam rumah tangga, namun kenyataan membuktikan kekerasan dalam rumah tangga semakin meningkat. Tujuan penelitian ini: pertama, untuk mengetahui dan menganalisa kekerasan di rumah tangga yang menjadi alasan terjadinya perceraian. Kedua, untuk menge­tahui dan menganalisis kewenangan Pengadilan Agama dalam menangani kasus perceraian akibat kekerasan dalam rumah tan­g­ga. Ketiga, untuk mengetahui dan menganalisa konsekuensi hukum dari keputusan Pengadilan Agama dalam kasus perceraian yang disebabkan oleh kekerasan dalam rumah tangga. Penelitian meng­gunakan metode pendekatan yuridis normatif. Spesifikasi pe­nelitian ini menggunakan penelitian deskriptif analitik kualitatif. Sumber data dalam penelitian ini adalah beberapa hakim Peng­adilan Agama. Sebagai data utama adalah Undang-Undang Nomor 1 Tahun 1974 tentang Perkawinan, KHI dan pedoman wawancara secara terstruktur. Terhadap data sekunder, metode pengumpulan data dilakukan dengan penelitian kepustakaan. Hasil penelitian ini menunjukkan bahwa kekerasan dalam rumah tangga adalah alasan perceraian. Alasan perceraian yang disebabkan oleh kekejaman atau penganiayaan berat telah diatur dalam ketentuan berikut: a) yang diatur dalam Pasal 39 ayat (2) penjelasan Undang-Undang Nomor 1 Tahun 1974 tentang Perkawinan; b) diatur dalam Pasal 19 huruf (d) Peraturan Pemerintah Nomor 9 Tahun 1975 tentang Pe­laksanaan Undang-Undang Nomor 1 Tahun 1974 tentang Per­kawin­an; c) diatur dalam Pasal 116 huruf d (d) KHI (Kompilasi Hukum Islam). Alasan ini termasuk dalam kategori kekerasan dalam rumah tangga. Dengan kata lain, kekerasan dalam rumah tangga adalah bagian dari kekejaman atau penganiayaan berat. Kewenangan Peng­adilan Agama untuk menangani kasus perceraian akibat ke­kerasan dalam rumah tangga telah diatur dalam Kompilasi Hukum Islam (KHI). Konsekuensi hukum dari keputusan Pengadilan Agama dalam kasus perceraian yang disebabkan oleh kekerasan dalam rumah tangga diatur dalam Pasal 156 KHI.

This paper explores the implications of D v Commissioner of Police for the Metropolis [2016] QB 161, a recent decision of the Court of Appeal in which two victims of a serial rapist successfully sued the Metropolitan police for investigative failures relying on Art 3 of the European Convention of Human Rights and the Human Rights Act 1998. The paper reflects upon the extent to which English courts are willing to recognise a duty to investigate within the wider context of civil claims against the police, particularly with regard to failures arising from the investigation of crimes of sexual and domestic violence. The comparative scope of tort and human rights claims is also considered, along with the evolving jurisprudential trend towards drawing a firm line between the two kinds of claim.

This edition of PER consists of one oratio, 13 articles and one book review dealing with a variety of themes.The first contribution is an oratio delivered by Lourens du Plessis at a colloquium hosted by the Faculty of Law, University of the Western Cape, on 2 October 2015 to celebrate his life and work, in which he aptly refers to himself as a "learned jackal for justice".The first of the 13 articles is by Lonias Ndlovu, who uses the 2013 Supreme Court of India case of Novartis AG v Union of India to argue for legislative reform by SADC members in the granting of patents for new versions of old medicines. Secondly, Lunga Siyo and John Mubangizi consider whether the existing constitutional and legislative mechanisms provide sufficient judicial independence to South African judges, which is fundamental to democracy.Leah Ndimurwimo and Melvin Mbao trace the root causes of Burundi's systemic armed violence and argue that despite several UN Security Council Resolutions and peace agreements aimed at national reconciliation and reconstruction, mass killings and other heinous crimes remain unaddressed. In the fourth place, Marelize Marais and Jan Pretorius present a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). Phillipa King and Christine Reddell discuss the pivotal role of the public in water use rights, especially in the context of theNational Water Act 36 of 1998 in the fifth article. The difficulties surrounding the tripartite scheme of statutory, constitutional and living law in a pluralistic system such as South Africa are the focus of the article by Rita Ozoemena. She uses the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC) as an example to illustrate the difficulties experienced in trying to balance this scheme. Angela van der Berg critically discusses and describes from a legal perspective the potential and function of public-private partnerships (PPPs) between local government (municipalities) and the private sector in fulfilling the legally entrenched disaster management mandate of municipalities. André van der Walt and Sue-Mari Viljoen argue that there are sound theoretical and systemic reasons why it is necessary to keep in mind the differences between property, land rights and housing rights when analysing, interpreting and applying any of these rights in a specific constitutional text. The special procedural measures which must be considered in terms of the Consumer Protection Act 68 of 2008 in order to decide if a contract is procedurally fair are analysed by Philip Stoop in his article. Liz Lewis also scrutinises the judicial development of customary law in the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC). She pleads for a judicial approach which take cognisance of the norms and values with reference to their particular context and audience instead of those embedded in international and western law. Water security, which is dealt with by Ed Couzens, remains a highly topical theme in a country such as South Africa. He explores ways to circumvent the effects of the Constitutional Court in Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) with regard to the allocation of water to the poor. Izelle du Plessis discusses some of the existing opinions regarding the incorporation of double taxation agreements into the domestic law of South Africa. Last, but not least, Koos Malan deliberates on the rule of law and constitutional supremacy and comes to the conclusion that they are, from the perspective of the factual dimension of the law, more susceptible to the volatility of unpredictable changes and instability than the doctrine of the rule of law and constitutional supremacy purport them to be.In the last contribution to this edition, Robbie Robinson reviews the book "International Law and Child Soldiers" written by Gus Waschefort and published by Hart Publishing (Oxford) in 2015. He is of the opinion that the book is asine qua non for studies of children in international law.

In 1998, in an attempt to undo the long-standing neglect of domestic violence, legislators placed a set of duties on the police in relation to domestic violence and coupled these with a unique system of accountability relations and practices. This articles examines the effect of these in three ways:review both of complaints of misconduct, as well as the station audits conducted in terms of the Domestic Violence Act's prescripts, and analysis of the workings of the Act's accountability mechanisms over time. This shows the Act's system of accountability to have had some success in making domestic violence a policing priority. But this has taken a number of years of interaction across the domains of the political, legal, bureaucratic and the social to accomplish. On this account accountability reveals itself to be a contingent outcome and practice that also takes different forms at different times. It also remains an ambivalent undertaking in relation to domestic violence. While answers may be demanded of the police, oversight of these responses is lodged with an agency possessing limited capacity and weak institutional authority.

In 1998, in an attempt to undo the long-standing neglect of domestic violence, legislators placed a set of duties on the police in relation to domestic violence and coupled these with a unique system of accountability relations and practices. This articles examines the effect of these in three ways:review both of complaints of misconduct, as well as the station audits conducted in terms of the Domestic Violence Act's prescripts, and analysis of the workings of the Act's accountability mechanisms over time. This shows the Act's system of accountability to have had some success in making domestic violence a policing priority. But this has taken a number of years of interaction across the domains of the political, legal, bureaucratic and the social to accomplish. On this account accountability reveals itself to be a contingent outcome and practice that also takes different forms at different times. It also remains an ambivalent undertaking in relation to domestic violence. While answers may be demanded of the police, oversight of these responses is lodged with an agency possessing limited capacity and weak institutional authority.

The preamble of the Domestic Violence Act (116 of 1998) (DVA) recognises that domestic violence is a serious social evil and that there are high incidences of domestic violence in South Africa. The preamble further recognises that:a) victims of domestic violence are among the most vulnerable members of society;b) domestic violence takes many forms and may be committed in a wide range of domestic relationships; andc) the remedies previously available to victims of domestic violence have proved to be ineffective.The Constitution of the Republic of South Africa, 1996 (the Constitution) provides various rights that are also applicable to victims of domestic violence. The Constitution guarantees the right to dignity and to freedom and security of the person (see ss 10 and 12 of the Constitution respectively). Domestic violence against any person is a violation of these rights. The DVA further recognises that South Africa has international commitments to end violence against women and children in terms of the United Nations Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child. A right not to be subjected to domestic violence may not be specifically mentioned in international human rights law instruments, but freedom from all kinds of violence and the right to equality and human dignity is generally emphasised.The purpose of the DVA is to provide a legal remedy in the form of an interdict that prohibits a person from violating the rights of the complainant. In order to give effect to this purpose, section 7(1) of the DVA provides that the court may grant a protection order to protect the rights of the complainant. Section 7(2) of the DVA further grants the court the power to impose any additional conditions that it deems reasonably necessary to protect and provide for the safety, health or well-being of the complainant.In KS v AM (2018 (1) SACR 240 (GJ)), the court found that section 7(2) of the DVA empowered the court to order the seizure of the respondent’s digital equipment to remove any photograph, video, audio and/or records relating to the complainant. This case note examines the decision in KS v AM (supra) and determines whether the decision is justifiable in law. The definition of domestic violence is discussed first and thereafter the remedies available in terms of the DVA are examined. A discussion of the judgment in KS v AM (supra) follows.

This is an exploratory study on the implementation of the Domestic Violence Act No 116 of 1998 in South Africa. It is a case study of two townships in the Nkonkobe Municipality District, Eastern Cape Province. The study was conducted at Ntselamanzi and Upper Qhumashe townships in Nkonkobe Municipality District, Eastern Cape. Since this is a qualitative exploratory study, in-depth interviews were conducted on a sample of ten women in abusive relationships and focus group interviews were conducted on five service providers for a triangulation. A study of related literature focused on African women in battered relationships. An African women’s perspective on the experiences of abuse have been explored. Gender based radical feminist views were discussed and legislations and conventions were analyzed from a human rights perspective. The implementation of the Domestic Violence Act and the role of service providers were also looked into. The findings suggest that African women experience abuse in partner relationships. They sustain grievous bodily harm, psychological, emotional and financial abuse. The patriarchy system, alcohol abuse, infidelity, traditional practices and failure to maintain children have been cited as some of the reasons. The social networks and service providers assisted these women to some extent. However, there is need for ethnic sensitive interdisciplinary training approach on African communities on the Act and a legal system that is accessible to rural women in order to curb further abuse. Various recommendations have been put forward. The study indicated a need for ethnic sensitive empowerment programs for the abused, rehabilitative programs that take into cognizance human rights violations of these women and the abusers, and effective legal remedies to prohibit women abuse.

M.A.
Domestic violence is widespread in South Africa, with one in four women being the victims of it. Victims of domestic violence try to change their conditions in the hope that things will get better. Domestic violence takes many forms. Some of the victims experience only one form of violence while others experience different forms. Domestic violence has physical, emotional, sexual, and economic dimensions (Goosen and Shaik, 1998: 1). The Domestic Violence Act 116 of 1998 was passed in the South African Parliament and became operational on 15 December 1999. Unlike the old Act (i.e. the Prevention of the Family Violence Act of 1993), the new Act addresses a number of problems specific to domestic violence. It also recognizes the range of relationships within which domestic violence occurs as broader than only the relationship between a man and a woman. (Fedler in Reclaiming Women’s Spaces, 2000: 132). Gangaloo (in Naidoo, 1999: 17) mentioned that the preamble of the Domestic Violence Act aims to provide protection to the victims of domestic violence. The Protection Order under the Domestic Violence Act orders that perpetrators of domestic violence stop their violent behaviour against the victims and also that they be of good behaviour towards them. The research problem of the study can be formulated as follows: After the implementation of the Domestic Violence Act 116 of 1998, on 15 December 1998, a number of victims of domestic violence applied for and were granted the Protection Order in Alexandra Township. However, no follow-up studies have been done in Alexandra on the perspectives of the affected marital couples on the Protection Order. The main goal of the study is to explore the perspectives of marital couples in Alexandra Township on the Protection Order under the Domestic Violence Act 116 of 1998 with the intention of finding out whether the Act is achieving its primary purpose, i.e. to protect victims of domestic violence. The objectives of the research study are: * To explore perceptions on the impact of the Protection Order on family stability * To investigate the attitude of affected marital couples towards the Protection Order * To investigate the understanding of the Protection Order by affected marital couples * To investigate, using the results of the study, whether the Protection Order is achieving its primary purpose – i.e to protect victims of domestic violence. The researcher will be using qualitative research method to conduct the study. The goal of the study is exploratory as it will add new information and knowledge to the field of domestic violence. The research will focus on marital couples, married either in a civil or customary marriage, who applied for and were granted the Protection Order between January 2000 to January 2001. The age group of the respondents varies from 30 to 55 years. The research results of the study show that legal remedies alone will not eradicate domestic violence. The study demonstrates that physical violence may have stopped but victims are still abused emotionally.
MS. H.F. Ellis

In this study, the research problem sought to explore the degree of implementation of the Domestic Violence Act 116 of 1998 by members of the South African Police Service (SAPS). The Domestic Violence Act clearly stipulates the responsibilities of members of the South African Police Service in terms of the policing and management of domestic violence. Data was collected by means of a literature study and individual interviews conducted with SAPS members at the station level. These police officials are responsible for implementing the provisions set out in the DVA. The researcher also drew on her investigative experience in the SAPS, including the investigation of domestic violence. In addition, the researcher conducted a comprehensive literature study of national legislation, internal SAPS policies and directives that govern and promote the regulation of domestic violence in South Africa, the policing of domestic violence, media and newspaper reports as well as library resources and international studies. The findings of the research indicate that participants had a diverse understanding of domestic violence. This study also serves as testimony that the majority of the participants perceived and experienced the implementation of the DVA by the SAPS in various ways. However, participants understand their role and responsibilities to efficiently implement the provisions of the DVA. It was further determined that most of the participants knew their responsibilities regarding record keeping in incidences of domestic violence, and that members of the SAPS knew the procedure to follow in order to serve protection orders. It is, however, questionable whether they will be able to do so when necessary as most of them have not served it themselves as there are specific members at the station level who have been designated the duty of serving protection orders. However, it became evident that SAPS members are confronted with various challenges, at the station level, which hinder the proper implementation of the DVA. The recommendations made in this study may provide the SAPS with knowledge regarding the challenges and shortcomings that police officials experience in effectively implementing the provisions set out in the DVA, the role and responsibilities of SAPS members to efficiently implement the DVA, as well as the training and resources necessary to effectively execute the DVA.
Police Practice
M. Tech. (Policing)

There has been a vast amount of research regarding domestic violence. However, the literature is centered on a linear, cause and effect approach. This study aimed to explore domestic violence from the experiences of young female adults, and will be approached from a postmodern perspective. The participants were selected based on purposive sampling and willingness to participate. The sample consists of two participants and the data was obtained through their written stories and semi-structured face-to-face interviews. Themes were then extracted from the data and were explored through hermeneutic analysis which is consistent with the postmodern approach. A qualitative methodological design was used in order to allow meaning to emerge. The results were then presented in an interpretive and descriptive manner.
Psychology
M.A. (Clinical Psychology)

The study used a qualitative and quantitative approach in evaluating the handling of domestic violence cases in the Alice cluster by the South African Police Service officials. Fifty SAPS officials and twenty victims of domestic violence participated in the research study. Forty cases of domestic violence and four inspection reports by the Eastern Cape Evaluation Service from the Alice cluster were also consulted which served to confirm the responses from the respondents. Questionnaires and interviews were utilized for data collection. The research study revealed that SAPS officials were not properly trained in domestic violence, as a result domestic violence cases were not handled according to the Domestic Violence Act. Some domestic violence victims expressed their dissatisfaction with the handling of their cases. The suggested recommendations include adequate training necessary for SAPS officials to improve service delivery to the victims of domestic violence and proper supervision by the station management.
Police Practice
M.Tech. (Policing))

The research addresses secondary victimization of women reporting abuse at the Lenasia Police Station and reasons why it occurs. In addition, the research also determines if the expectations of the survivors of abuse about the police when reporting abuse are in line with what the Domestic Violence Act stipulates as their duties. To determine this, a sample of survivors reporting abuse was used. A qualitative and quantitative approach to the research was used. Two questionnaires were used for the sample of survivors and for service provides, with an opinion survey with knowledgeable people and a focus group discussion with police. It was found that some women were experiencing victimization by the police and that the survivors' expectations of the police were as stipulated in the Domestic Violence Act. Services provided by service providers were outlined and obstacles preventing police to provide a good service were identified. Recommendations were made.
Social work
MA(SS) (SOCIAL WORK)