The Legislative Evolution of Gender-Based Violence Protection in South Africa

Robyn Shepherd | SchoemanLaw Inc  

Category: Family Law | Family Law

Gender-based violence (GBV), and domestic violence in particular, represent a severe societal issue in contemporary South Africa. To combat this pervasive issue, the South African government has recently taken significant legislative steps to enhance the legal framework governing GBV. This effort culminated in the enactment of the Domestic Violence Amendment Act 14 of 2021 ("the New Act"), which revises and expands upon the provisions of the Domestic Violence Act 116 of 1998 ("the Old Act"). 

The New Act introduces critical new definitions that broaden the scope of what constitutes domestic violence. Notably, it includes terms such as "coercive and controlling behaviour," "spiritual abuse," and "elder abuse." This expansion reflects a more comprehensive understanding of the various forms of abuse that can occur within domestic settings. 

Spiritual abuse, for instance, now includes acts that ridicule or insult religious beliefs, prevent the practice of religious beliefs, or use religious texts to control or shame a victim. This category demands that legal professionals become increasingly aware of the cultural and spiritual contexts of the individuals involved. 

Electronic Applications for Protection Orders 

One of the most significant procedural advancements in the New Act is the ability for victims to apply for protection orders electronically. Section 4(1)(bb) allows complainants to submit applications via email to the court, which reduces the logistical and psychological barriers for victims seeking urgent protection. 

Comprehensive Inclusion of Abuse Forms 

The New Act's definition of domestic violence now explicitly includes physical, sexual, emotional, verbal, psychological, and economic abuse, alongside newer categories like spiritual and elder abuse. For example, Section 2(s) includes the physical abuse of children, aligning its interpretation with the Children’s Act 38 of 2005. Moreover, the New Act categorizes economic abuse as the unreasonable deprivation of economic resources necessary for the complainant’s well-being, further emphasizing the multifaceted nature of domestic violence. 

Mandatory Reporting and Technological Integration 

A contentious yet pivotal amendment in the New Act is the mandatory reporting requirement for adults who become aware of domestic violence acts. Failure to report such incidents can result in criminal liability. This provision aims to foster a more proactive societal response to GBV but has faced criticism for potentially stripping victims of their agency and exposing them to further harm. 

The New Act embraces technological advancements by introducing secure online submissions for protection orders and an integrated electronic repository. This modernization facilitates remote applications, particularly crucial for victims whose mobility is restricted by their abusers. 

Legal Support for Victims 

The amendment includes provisions to ensure victims’ safety and dignity, such as prohibiting the abuser from entering the victim’s workplace or residence without consent. This measure offers immediate relief and protection to victims from harassment and stalking in their everyday environments. 

The proposed amendments to the Magistrates’ Courts Act and the Superior Courts Act aim to facilitate the use of intermediaries and audiovisual links in proceedings, ensuring that victims can provide evidence without facing their abusers directly. This is particularly significant for bail and parole hearings, where victims or their representatives can participate in the decision-making process. 

Conclusion 

The Domestic Violence Amendment Act 14 of 2021 marks a substantial legislative effort to address the multifaceted issue of domestic violence and GBV in South Africa. By broadening definitions, incorporating technological advancements, and enhancing reporting and protection mechanisms, the New Act provides a more robust legal framework aimed at safeguarding victims and holding perpetrators accountable. These amendments reflect a significant progression in the legal landscape, aligning South African laws with contemporary understandings of domestic violence and its pervasive impact on society. 

Robyn Shepherd | SchoemanLaw IncAttorneyhttps://schoemanlaw.co.za/our-services/family-law/