Under the DVA, at the scene of an incident of domestic violence or as soon as reasonably possible thereafter, or when the incident of domestic violence is reported, any member of the South African Police Service must:
- assist the victim as may be required, which may include assisting or making arrangements for the victim to find a suitable shelter and to obtain medical treatment
- if it is reasonably possible to do so, hand a notice containing information to the victim in the official language of the victim's choice
- if it is reasonably possible to do so, explain to the victim the content of such notice, including the remedies at their disposal and the right to lodge a criminal complaint[101]
A peace officer, as defined in the CPA[102] (which includes any member of the South African Police Service), may also, without a warrant, arrest any person who is reasonably suspected of having committed an act of domestic violence as contemplated in the DVA.[103]
Accordingly, the South African Police Service is mandated to get involved either upon the lodgment of a criminal complaint against the abuser, or where the police officer has probable cause to believe that the abuser was involved in the commission of a crime, such as assault.
Nothing prohibits legal representation in domestic violence cases. In a criminal matter, the prosecutor will act in the interests of the victim, and the accused person has a right to legal representation.[104]
Yes, proof or evidence will be required to support the criminal charge against the accused person.
As a minimum, the court will need to consider all evidence as it deems fit, including oral evidence or evidence by affidavit, which will form part of the record of the proceedings.[105]The law of evidence is regulated under the South African law of procedure and sufficient evidence will need to be presented in order for the court to determine that the accused is guilty beyond reasonable doubt, including witness testimony, documentary evidence, real evidence (such as any object used to commit the violent act or forensic evidence, etc.) The CPA and the common law regulates evidence in criminal matters.
Where sexual assault occurs, there are also clear national directives and instructions when it comes to forensic examinations relating to sexual offences. Compliance with a national directive designed to provide standardized procedures for conducting forensic examinations on sexual offense survivors in all health establishments in South Africa is required. These directives are used in order to, amongst others, ensure a holistic, coordinated, efficient, and supportive response to survivors of sexual offense as well as to ensure the provision of a full range of comprehensive services to survivors who have reported the sexual offence.[106]Yes. The accused can raise certain common law defenses to exclude inter alia the unlawfulness of the act or the intention to commit the act. These defenses include, among others:
Self-defense (also known as private defense)
A person acts in self-defense, and this act is lawful, if they use force to repel an unlawful attack that has commenced, or is imminent, upon their own or somebody else's life, bodily integrity, property or other interest that deserves to be protected, provided the defensive act is necessary to protect the interest threatened, is directed against the attacker and is reasonably proportionate to the attack.[108] Please see below for more information.
Necessity
A person acts in necessity, and his act is therefore lawful, if he acts in protection of his or somebody else's life, bodily integrity, property or other legally recognized interest that is endangered by a threat of harm that has commenced or is imminent and which cannot be averted in another way, provided the person is not legally compelled to endure the danger and the interest protected by the protective act is not out of proportion to the interest infringed by the act. It is immaterial whether the threat of harm takes the form of compulsion by a human being or emanates from a nonhuman agency, such as acts of nature.[109]
Consent
Consent from a person who would have otherwise been the victim of the conduct may, in certain instances, render the conduct lawful.[110] Please see additional information below.
Presumed consent
If a person commits an act that infringes the interests of another, his conduct is justified if he acts in defense of, or in the furthering of, the other persons interests, in circumstances in which the other person's consent to the act is not obtainable but there are reasonable grounds for assuming that the other person would have consented to the conduct had he been in a position to make a decision.[111] For example, a person loses consciousness in a motor vehicle accident and the paramedics transport him to the hospital without his permission to receive medical treatment.[112]
Official capacity
An act, which would be unlawful, is justified if the person is entitled to perform it by virtue of the office he holds, provided it is performed in the execution of his duties.[113] For example, the person is a police officer.
Trivial nature of crime
If a person commits an act that is unlawful but the degree to which he contravenes the law is minimal, a court may decide not to convict him for the crime.[114]
Provocation/emotional stress
In addition, the accused may also attempt to raise the defense of provocation or emotional stress. Provocation may, in exceptional circumstances, exclude an intention to commit a crime or may mitigate a sentence. In a case of nonpathological incapacity, the defense of provocation or emotional stress will be successful if the court is satisfied that the accused did not possess the capacity to appreciate the wrongfulness of his conduct or to act in accordance with such appreciation. A feature of this defense is the relatively temporary nature of such incapacity. [115]
It must, however, be noted that the factual foundation for this defense must be sufficient to create reasonable doubt, as the prosecution is assisted by the presumption that, in the absence of exceptional circumstances, a sane person who engages in conduct that would ordinarily give rise to criminal liability does so consciously and voluntarily. The mere version of the accused that he could not control himself will not be sufficient to lead to an acquittal and will also not be readily accepted by the court.[116]Yes. False accusations are punishable in South Africa. Any person who makes a statement that is admitted as evidence and who, in such statement, willfully and falsely states anything that, if sworn, would amount to the offense of perjury, will be deemed to have committed the offense of perjury and will, upon conviction, be liable to the punishment prescribed for the offense of perjury.[118]
Consent can operate as a ground of justification in respect of certain crimes only, and then only under certain circumstances. If consent excludes the unlawfulness of the act (such as an assault) and no consent has been given, the conduct is unlawful. If a person mistakenly believes that consent has been given, whereas in fact no consent has been given, he or she may escape liability on the ground that he or she lacked culpability.[119]
When consent may be a ground of justification in assault
On a charge of assault, consent may be a ground of justification in certain circumstances. The best known examples of assault cases where consent may indeed operate as a defense are those where injuries are inflicted on others in the course of sporting events, and where a person's bodily integrity is impaired in the course of medical treatment, such as an operation.
The reason why a medical doctor cannot be charged with assaulting a patient upon whom she performs an operation is the patient's consent to the operation[120] (assuming that it has been given). If it was impossible for the patient to consent because of unconsciousness or mental illness, for example, the doctor's conduct may nevertheless be justified by necessity or presumed consent.[121] In all these cases, the doctor must have the intention of performing a medical operation on the patient.[122] If, however, the patient refuses to consent, the doctor's conduct is, with certain exceptions, not justified.
Sexual assault
Sexual assault (presently a statutory crime)[123] may be committed with or without the use of force or the infliction of injuries. Consent may operate as a justification for the act if no injuries are inflicted.[124] Where injuries are inflicted, it has been held that consent may not be pleaded as a defense. It would, however, seem to be more realistic to enquire in such cases whether the act is contra bonos mores (against good morals) or not. If the injury is slight, it is conceivable that the law may recognize consent to the act as a defense.
A person can withdraw consent for sexual activity at any point.[125]
Both self-defense (commonly known as private defense) and insanity are recognized defenses under South African law, subject to certain requirements.
In order for a person to show that self-defense was appropriate and that the conduct was justifiable, the following will need to be proved in court:
The attack must be:
- unlawful
- directed at an interest that legally deserves to be protected
- imminent but not yet completed
The defense must be:
- directed against the attacker
- necessary
- reasonable in relation to the attack
The attacked person must be aware that they are acting in self-defense.[126]
Since 1977, the defense of mental illness (insanity) has been governed by statute.[127] Section 78(1) of the CPA reads as follows:
A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable–
- of appreciating the wrongfulness of his or her act or omission; or
- of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act.
The CPA requires all persons that are examined as witnesses in criminal proceedings to be placed under oath administered by the presiding officer. The oath to be administered, as prescribed by the CPA reads as follows: "I swear that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God."[128] Witnesses that are unable to take the oath or who may object to taking the oath are allowed to make an affirmation.[129] The affirmation as prescribed by the CPA reads as follows: "I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth."[130]
In S v Matshiva,[131] the Supreme Court of Appeal held that section 162(1) of the CPA makes it clear that it is peremptory for all witnesses in criminal trials to be examined under oath, with the exception of certain categories of witnesses. Further, the SCA held that the testimony of a witness who has not been placed under oath properly, has not made a proper affirmation or has not been properly admonished to speak the truth, lacks the status and character of evidence and is inadmissible.
In addition, the Supreme Court of Appeal held that section 164(1) is resorted to when a court is dealing with the admission of evidence of a witness who from ignorance arising from youth, defective education or other cause, is found not to understand the nature and import of the oath and affirmation. The Supreme Court of Appeal stated that section 164(1) clearly provides that in order for this section to be triggered it should be determined that the witness does not understand the nature and importance of the oath.
The CPA permits the following persons to abstain from providing certain evidence:
Privilege against self-incrimination:
A witness may be excused from answering questions that may expose the witness to a criminal charge.[132]
Marital privilege
A husband will not be compelled to disclose at criminal proceedings any communication that his wife made to him during the marriage, and a wife will not be compelled to disclose at criminal proceedings any communication that her husband made to her during the marriage.[133]
Legal professional privilege
The CPA prohibits a legal practitioner qualified to practice in any court, to give evidence at criminal proceedings against any person by whom she is professionally employed or consulted as to any fact, matter or thing with regard to which such practitioner would not, by reason of such employment or consultation, have been competent to give evidence without such consent.[134]
The giving of evidence, especially for child witnesses, may be emotionally traumatic for the witness. Further, due to their age it may be more difficult for child witnesses to recount details of domestic violence and to articulate their evidence in court.
The CPA provides that every person not expressly excluded from giving evidence by the CPA will be competent and compellable to give evidence in criminal proceedings.[136]
The court will decide on the compellability and competence of the minor to provide evidence in the criminal proceedings on a case-by-case basis. One of the considerations that the court will take into account is whether the child is able to distinguish between truth and untruth.[137]
The Children's Act specifically provides that:
A parent, guardian, other person who has parental responsibilities and rights in respect of a child, care-giver or person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, is guilty of an offence if that parent or care-giver or other person abuses or deliberately neglects the child.[138]
The parent, guardian, caregiver or person with parental responsibilities in respect of the child may be subject to a fine or to imprisonment for a period not exceeding 10 years, or to both if he or she is a first-time offender.[139] Repeat offenders may be subject to a fine or imprisonment for a period not exceeding 20 years or to both.[140] Consequently, courts are able to effect high imprisonment terms for abusers who commit domestic violence or family violence that affects a child.
Lastly, persons who have been found guilty of crimes against children and those found not guilty but declared by the court to be unsuitable to work with children, may be listed on the Child Protection Register.[141]
Sentencing in South Africa is the primary prerogative of trial courts. The courts enjoy a wide discretion to determine the type and severity of a sentence on a case-by-case basis.[142] In making sentencing decisions, the courts look to the sentencing principles entrenched in the appellate division's decision in S v Zinn for guidance.[143] In S v Zinn, the court held that when imposing a sentence, what needs to be considered is the triad consisting of the crime, the offender and the interests of society. This gave rise to the current practice of considering what is referred to as the three legs supporting an appropriate sentence: (1) the seriousness of the offence, (2) the personal circumstances of the offender, and (3) the interests of the public.
In terms of a first-time domestic violence offender, the trial court would have regard to the triad principle set out in the Zinn case in arriving at the appropriate sentence for the offender.
Firstly, the trial court would have to consider the seriousness of the offense. Essentially, it is required that the punishment imposed must not be disproportionate to the offense. Although the courts have the discretion to determine the appropriate punishment for crimes that are perceived as less severe, the Criminal Law Amendment Act limits the court's discretion in relation to sentencing in certain serious crimes.[144] The Criminal Law Amendment Act provides mandatory minimum sentences for crimes such as murder, rape, drug dealing, smuggling firearms and human trafficking for sexual-purposes. Therefore, perpetrators that commit domestic violence that results in a serious crime will be subjected to the minimum sentences contained in legislation. The sentences for first-time offenders in this regard ranges from not less than 15 years' imprisonment for murder, not less than 10 years' imprisonment for rape and compelled rape and not less than five years' imprisonment for kidnapping and assault with intent to cause grievous bodily harm.[145]
Secondly, the triad principle in the Zinn case requires the court to consider the personal circumstances of the offender to ensure that the sentence fits the offender. In this instance, the presiding officer will hear submissions on the personal circumstances of the offender and will weigh the aggravating submissions against the mitigating submissions to establish a sentence that is suitable for the offender. The fact that the offender is a first-time domestic violence offender may be seen as a mitigating factor in these circumstances. However, the South African judiciary has often expressed its intolerance for domestic violence offenders. In particular, the Constitutional Court has stated that domestic violence brutally offends the values and rights enshrined in the Constitution. Therefore, there is a constitutional requirement to deal effectively with domestic violence.[146] Accordingly, the judiciary when sentencing abusers often applies less leniency and abusers are often subjected to the maximum penalty for imprisonment.[147]
Lastly, the triad principle in the Zinn case allows presiding officers to take into consideration the interests of society when making a determination of the appropriate sentence to which the offender should be subjected. Essentially, this consideration incorporates the traditional purposes of punishment (deterrence, rehabilitation, protection and retribution) into the sentencing considerations. The consideration of public interest may also be an aggravating or mitigating factor in determining the appropriate sentence. As noted above, domestic violence brutally offends the values and rights enshrined in the Constitution. Therefore, in certain instances, a harsh sentence for domestic violence in a society that battles with surges of domestic violence incidents may appear as the adequate deterrence and punishment for domestic violence offenders.
Yes. As stated above, the Criminal Law Amendment Act requires the minimum mandatory sentences for serious crimes. However, the courts maintain the discretion to subject perpetrators of less severe crimes to criminal penalties.
The DVA provides that the violation or breach of any conditions contained in an existing protection order is an offence.[148] Convicted abusers will be liable to a fine or imprisonment for a period not exceeding five years or, alternatively, to both such fine and imprisonment. In the instance where the presiding officer imposes a fine, the presiding officer will determine the appropriate fine in relation to the severity of the offense.
In the event that there are reasonable grounds to believe that the victim of domestic violence may suffer imminent harm as a result of a breach of the protection order by the abuser:
- the victim may submit an affidavit to the police outlining the circumstances of the potential or actual breach by the abuser
- the police officer will immediately arrest the abuser for contravention of a prohibition imposed by the court[149]
Abusers can also be subjected to the following:
- in relation to sexual offenses; the convicted offender's personal details will be captured in the sexual offenders register;[150]
- community corrections to facilitate the rehabilitation and restoration of the rights of victims;[151]
- committal to any institution established by law;[152] and/or
- a fine, the amount of which is determined by the presiding officer.[153]
Yes. Upon request by the victim, the victim will be notified when the abuser is to be considered for or released on parole.
In this regard, the Service Charter for Victims in South Africa ("Victims Charter") strives to comply with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985.[154] Although the Victims Charter emphasizes the victims' right to receive information about the proceedings in which the victim is involved, the victim is required to request such information. In addition, the Victims Charter explicitly states that information on the abuser's release from custody will be provided only when the abuser is to be released on parole. It fails to mention whether or not the victim is entitled to a similar right where the abuser has completed his sentence or is released on other conditions.[155]