Lawyers can, and should, present evidence of battered woman syndrome for a crime a victim has committed; however, the interplay between the available support in terms of the criminal legal justice system and the deterrent of taking the law into one's own hands necessitates a nuanced inquiry into the surrounding circumstances. In the leading case^[156] on this subject, the court found that:

The scourge of domestic violence must be dealt with effectively by the State and society, and, if necessary by the courts. It would be contrary to the values of the Constitution to hold that that scourge provides a licence to abused partners to take the law into their own hands in the absence of grounds for lawful self-defense.

Only the standard defenses for crimes can be used such as self-defense and necessity. If the victim committed the crime while being abused, it would be considered to be self-defense.

If a victim committed the crime after the abuse, in some instances, it may still be considered self-defense. However, if the victim is found guilty of a crime, evidence of battered woman syndrome can be lead in order to reduce the victim's sentence. In order to receive a reduced sentence, there must be "substantial and compelling circumstances which justify a lesser sentence."^[157]

In the case of S v Ferreira and Others,^[158] the SCA had to determine whether the accused was sentenced correctly. In this case, a victim had been abused constantly by the deceased and was under the belief that if she tried to leave her abuser, he would have her raped by other men. She had previously tried to leave and had contacted the police for assistance on three previous occasions. After the deceased threatened to hire men to rape her, the victim enlisted the assistance of two men in her community to kill the deceased one evening when he was drunk. All three of the accused were convicted of murder and sentenced to life imprisonment. On appeal, the judge took into account expert evidence, which spoke to the victim's abuse.

Although in this case the victim hired others to kill the deceased, the judge did compare the facts of this case to other cases where victims may have killed their abuser the day or week after the abuse took place. The court found that if the question of "whether the threat from which each sought to escape was still, subjectively, perceived to be a real and present danger (albeit not imminent enough to escape criminal liability altogether) at the time of the offence" could be answered in the affirmative, then it is extremely difficult to conclude that the imprisonment sentences in each case should differ.^[159]

Based on the facts of this case, the victim's sentence was reduced from life imprisonment to six years' imprisonment, with the unserved portion suspended.^[160]

As set out above, the DVA applies to persons who are in a "domestic relationship" as that term is defined in the DVA.

The DVA provides that "any person who is or has been in a domestic relationship with a respondent and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of" such person, may make an application for a protection order.^[161]

A "domestic relationship" is defined as a relationship between two people who:

• are or were married to each other
• live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other
• are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time)
• are family members related by blood, marriage or adoption
• are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration
• share or recently shared the same residence^[162]

A strictly work relationship with a colleague is not included in the definition of a domestic relationship. Therefore, if an employee is sexually harassed at work, they may not be able to apply for a protection order (interim or otherwise) under the DVA for this reason.

The employee's first steps should be addressing the sexual harassment at the workplace. The Amendment to the Code of Good Practice: Handling of Sexual Harassment Cases in Workplaces^[163] ("Code of Good Practice"), aims to eliminate sexual harassment in the workplace.

Under the terms of the Code of Good Practice, each employer must implement a policy to deal with complaints of sexual harassment at work. If an employee is sexually harassed in the workplace, she should follow the procedure as set out in her employer's policy. This may include making a complaint at work and following a formal/informal procedure and a disciplinary sanction being imposed against the other employee, including dismissal.

Should the harassment continue, the employee may also find recourse under the PFH Act. Under the PFH Act, any person who alleges that they were subjected to harassment^[164] may apply to the court for a protection order. Under the terms of this protection order, the court may:

• prohibit the harasser from:

• engaging in or attempting to engage in harassment
• enlisting the help of another person to engage in harassment
• committing any other act that may be specified in the protection order^[165]

• impose any other condition that "it deems necessary to protect and provide for the safety or well-being of the [victim] or related person"^[166]

An employee may only be dismissed for misconduct, incapacity or the employer's operational requirements.^[168] Dismissing the employee for any other reason may be considered unfair.^[169] Should an employee's dismissal be deemed unfair, the employer may be ordered by the Commission for Conciliation, Meditation and Arbitration (CCMA) or the labor court to compensate or reinstate the employee.

In order for an employer to dismiss an employee for misconduct, the employee must have contravened a rule or standard regulating conduct in the workplace.^[170] In addition, the employer must be able to prove that:

• the rule or standard was valid or reasonable
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard
• the rule or standard has been consistently applied by the employer
• dismissal was an appropriate sanction for the contravention of the rule or standard^[171]

Employees also have a common law duty to act in good faith and act in the best interests of the employer at all times. Therefore, if the employee's conduct outside of the workplace reasonably bring the employer's name into disrepute, an employer may be entitled to discipline or dismiss the employee (in serious cases).

Family members would need to take annual leave in this instance.^[172]

South Africans are given three days' family responsibility leave, which may only be used in the following circumstances:

• when an employee's child is born
• when an employee's child is sick
• in the event of the death of the employee's spouse, life partner, child, parent, grandparent, grandchild or sibling^[173]

Regional and international law analysis and comparison

The International Labour Organization (ILO) has introduced the Convention on Violence and Harassment ("ILO Convention"). The ILO Convention requires that each member state ensure that they "recognize the effects of domestic violence and, so far as is reasonably practicable, mitigate its impact in the world of work."^[174] This would provide employees who are in an abusive domestic relationship further protection. However, the ILO Convention requires member states to adopt and implement these provisions in terms of local law. Therefore, the ILO in itself would not be an appropriate mechanism for employees to seek recourse.

The Minister of Employment and Labour plans to implement the ILO Convention using the recently published draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work ("Draft Code"). Under the terms of the Draft Code, employers will be required to implement measures to mitigate the effect of domestic violence and harassment where it affects their employees. These measures are focused on helping victims of domestic violence by, inter alia, allowing flexible working arrangements and temporary protection from dismissals. The Draft Code has only been published for public comment, and therefore it may still be amended.

The law does not contain specific provisions that are intended to prevent abusers, who are South African citizens or permanent residents, from using immigration laws to perpetrate domestic violence against their spouse(s).

The Refugees Act^[175] makes provision to exclude migrants or persons applying for refugee status if the person has committed a crime in another country that is not of a political nature or committed a crime that "is listed in Schedule 2 of the Criminal Law Amendment Act or which is punishable by imprisonment without the option of a fine."^[176]

We are not aware of any specific immigration remedies that immigrants who cooperate with law enforcement relating to domestic violence would be able to rely on.

An asylum seeker will not qualify for refugee status in South Africa, according to the Refugee Act, if it is believed that the asylum seeker has committed a crime in South Africa that is listed in Schedule 2 of the Criminal Law Amendment Act, 1997 (Act 105 of 1997),^[177]or which is punishable by imprisonment without the option of a fine. Schedule 2 crimes that may be applicable for domestic violence include murder, rape, sexual offences, assault, breaking and entering premises, and kidnapping.

Regional and international law analysis and comparison

In accordance with the Maputo Protocol, women have equal rights and equal access to the refugee status determination procedure in South Africa. However, there is no mention of asylum accessibility to victims of domestic violence in the Refugee Act.^[178]

Whilst a number of countries have introduced legislation or supplementary legislation that provides benefits for survivors to apply for immigration status independently of the perpetrator, South Africa does not have specific legislation that would assist or benefit victims of domestic violence in relation to immigration. This is an area that requires further clarification and development.

The South African National Defence Force (SANDF) does not have a specific policy relating to domestic violence, but they rely on their Military Discipline Bill^[179] to guide them on the approach to take with misconduct. When a person that is subject to the Military Discipline Bill is suspected of attempting to commit or has committed a sexual offense for example, the matter must be dealt with in accordance with the provisions of the National Prosecuting Authority Act ^[180] and any subsequent trial must take place in a civilian court.

While South Africa does not have a military protective order equivalent (as is available in the United States of America, for example), the CPO is available to victims (as discussed above) and, in addition, members of the SANDF should be held accountable using the Military Discipline Bill and the National Prosecuting Authority Act.

When the court makes a decision at the conclusion of child custody cases, the court must ensure that the decision made is in the best interests of the child.^[181] This is similar to international trends.^[182] The Children's Act stipulates that the child's best interests are of paramount importance in all matters concerning the care, protection and well-being of a child.^[183] Every child custody case is handled in this way. The decision of the court is dictated by the circumstances of each case, one of the factors that affects the custody of a child is the need to protect the child from any physical or psychological harm that may be caused by exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behavior toward another person.^[184]

Determining what custody arrangement will serve the best interests of the child in any particular case involves the high court making a value judgment based on its finding of facts in the exercise of its inherent jurisdiction as the upper guardian of minor children.^[185] The Children's Act sets out certain factors, which constitute a nonexhaustive check list of criteria to serve as a guide of what information is relevant to the application of the best interest standard. These factors include:

• the nature of the personal relationship between the child and the parents and any other care­giver;
• the attitude of the parents towards the child and the exercise of parental responsibilities and rights in respect of the child;
• the capacity of the parents or of any other care­giver or person, to provide for the needs of the child, including emotional and intellectual needs;
• the likely effect on the child of any change in the child's circumstances, including the likely effect on the child of any separation from their parents or any siblings or other child, or any other care­giver or person with whom the child has been living;
• the practical difficulty and expense of a child having contact with their parents, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with their parents on a regular basis;
• the need for the child to remain in the care of his or her parent and family and to maintain a connection with his or her family, culture or tradition;
• the child's (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child;
• the child's physical and emotional security and his or her intellectual, emotional, social and cultural development;
• any disability that a child may have;
• any chronic illness from which a child may suffer;
• the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
• the need to protect the child from any physical or psychological harm that may be caused by subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
• any family violence involving the child or a family member of the child; and
• which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.^[186]

If it is in the best interests of the victim, the court may prohibit an abuser from entering or remaining in the shared residence of the victim and the abuser.^[187] Although a child may not be a victim of an abuser's crimes, the Children's Act specifically takes into consideration the need to protect children from physical and psychological harm, which may be caused by exposing a child to an act of domestic violence toward another person.^[188]

According to the DVA, if the court is satisfied that it is in the best interests of any child, it: (i) may refuse the abuser contact with such child; or (ii) order contact with such child on such conditions as it may consider appropriate.^[189]

Convention on the rights of the child in terms of UNICEF

The Convention of the rights of the Child ("Convention") to which South Africa is a party, further supports the provisions of the Children's Act and the DVA as set out above. The Convention provides that state parties are required to ensure that a child is not separated from his or her parents against his/her will, except when competent authorities determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.^[190] Such a determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.^[191]

Although not specifically provided for in the DVA, the Children's Act provides that every child that is of such an age, maturity and stage of development so as to be able to participate in any matter concerning that child has the right to participate in an appropriate way, and the views expressed by the child must be given due consideration.^[192]

As mentioned above, the child's best interests are of paramount importance in all matters concerning the care, protection and well-being of a child. Some of the factors that the court will take into account when determining the best interests of a child are:

• the need to protect the child from any physical or psychological harm that may be caused by:

• subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
• exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; and

• any family violence involving the child or a family member of the child.^[193]

South Africa does not provide a barrier to prevent landlords from forcing a tenant to move out because they are victims of domestic violence.

However, the Constitution provides that "everybody has the right to adequate housing."^[194] Further, the Constitution provides that no person may be evicted from their house without a court order.^[195] The Prevention of Illegal Evictions from and Unlawful Occupation of Land Act^[196] ("PIE Act") sets out the procedure that a landowner must follow before evicting a tenant. Under the PIE Act, a landowner must:

• apply for a service directive from a magistrate or high court. In this service directive, regard must be given to the circumstances of the tenant. This includes considering (1) the number of occupants of the house; (2) if any elderly persons live on the property; (3) if the household is headed by a woman or child; and (4) any other relevant circumstances.^[197] If the tenant has lived on the property for more than six months, the court must also consider whether other land may be available or can reasonably be made available by a municipality, another organ of state or another landowner for the relocation of the tenant.^[198]
• must serve the service directive on the tenant and the local municipality if the court awards such to the landowner. The victim will then be afforded the opportunity to state their case in court and raise any defense they may have against eviction.^[199] This may include that their occupancy is not unlawful if the landowner has failed to cancel the lease agreement. The presiding officer will then determine whether the victim should be evicted. If the eviction order is granted, the court will provide a date on which the victim must vacate the property.^[200]

In this regard, the Maputo Protocol also does not create barriers preventing landlords from forcing a tenant to move out because they are victims of domestic violence. However, the Maputo Protocol does provide that state parties must take appropriate and effective measures to adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women.^[201]

From the above positions, there is adequate authority provided to the South African legislator to introduce legislation providing protection to victims of domestic violence in relation to housing rights. While the DVA provides for assisting a victim of domestic violence in finding suitable shelter, it in no way extends to preventing landlords from evicting tenants who are victims of domestic violence.

Legislation in South Africa does not provide for a tenant's right to terminate his/her lease agreement early due to domestic violence. In most cases, the cancellation of a lease will be governed by the lease agreement and it is customary for lease agreements to detail the circumstances under which a tenant is entitled to cancel the lease.

If termination is not dealt with in the lease agreement, the parties may agree to an early termination of the lease agreement. Further, the Consumer Protection Act No. 68 of 2008 ("Consumer Protection Act") provides that a tenant may legally cancel a lease after providing the landlord with 20 business days' notice.^[202] However, the landlord may be entitled to a reasonable cancellation penalty and the tenant will remain liable for any amounts owed to the landlord.^[203] Should the tenant have a month-to-month lease agreement with the landlord, it is common practice to provide the landlord with a calendar months' notice to terminate the lease.

Yes, a protection order can exclude the abuser from the residence. The DVA provides that a court order may prevent the abuser who ordinarily lives or lived in a shared residence with the victim from entering or remaining in the shared residence or a specified part of the shared residence.^[205] The court may impose this prohibition only if it appears to be in the best interests of the victim.^[206]

This memorandum has explored the various applicable laws in South Africa as they relate to domestic violence in South Africa. Based on our analysis, it is evident that South Africa has adopted legislation to give effect to the various rights enshrined in the regional and international normative frameworks, as they relate to privacy, safety and integrity of the person in the context of domestic violence, including the International Covenant on Civil and Political Rights, 1966; the International Covenant on Economic, Social and Cultural Rights, 1966; the Convention on the Elimination of all Forms of Discrimination against Women, 1979; the African Charter on Human and People's Rights, 1981 (African Charter); the Maputo Protocol; and Recommendation 35.

The DVA, implemented in 1998, goes a long way in protecting the rights of victims of domestic violence and is a positive step taken by South Africa in fulfilling both its international and regional obligations to protect women and girls' rights, particularly with respect to domestic violence. The Criminal Law (Sexual Offences and Related Matters) Amendment Act, which also gives expression to the constitutional rights to equality, human dignity, life and freedom and security of the person, further strengthens South Africa's commitment to its international and regional obligations to protect victims of domestic violence.

It is commendable that the DVA adopted a wide approach in determining the range of intimate and family relationships that would fall within the ambit of the DVA, by not limiting its reach to traditional ideas of heterosexual marital relationships. Further, the DVA recognizes that there are circumstances where emergency protective measures are necessary and imposes various duties on the South African Police Service to protect victims of domestic violence and inform them of their rights.

However, despite the positive steps South Africa has taken in recognizing the prevalence of domestic violence in South African communities and implementing legislation to guard against and protect victims of domestic violence, the incidence of domestic violence in South Africa still remain unacceptably high. It has been estimated that 21% of women over the age of 18 have experienced physical violence by a partner, while 6% of women have experienced sexual violence by a partner.^[208] These numbers are likely even higher due to the high number of domestic violence cases that go unreported.

During a process of public hearings held in respect of the DVA in 2009 by the Portfolio and Select Committees on Women, Children and Persons with Disabilities, a number of concerns were raised regarding the implementation of the DVA and its efficacy. These concerns included, among others: (i) noncompliance with the provisions of the DVA; (ii) negative attitudes toward victims by the police and court officials, including failure by the police to attend domestic violence call outs and a failure to inform victims about their rights; (iii) undue delays in processes as a result of the unavailability of magistrates and court officials, especially after hours in emergency circumstances; and (iv) the lack of access to courts and the police.^[209]

The above clearly indicates that the high levels and prevalence of domestic violence in South Africa are not due to a lack of legislative reform but are rather a result of a failure of proper implementation. Until the implementation of domestic violence legislation is improved, it is unlikely that the prevalence of domestic violence will be reduced in South Africa. The requirement for African States to adopt the legislative measures necessary to ensure the prevention and eradication of violence against women^[210] is also only partially addressed by the DVA insofar as the DVA is responsive to domestic violence as opposed to preventative. While protection orders may prevent further violence, the DVA alone does not adequately serve the need to eradicate and prevent violence against women from occurring in South Africa.

As it relates to remedies available at the international and regional level for victims of domestic violence, these are limited. Whilst international and regional human rights instruments provide a framework for the protection and recognition of various human rights, including the rights of women and girls, the enforcement of such rights at both the regional and international level is not necessarily appropriate for victims of domestic violence seeking protective orders against alleged perpetrators of domestic violence. Typically, at both the international and regional level, the respondent is a state and not an individual perpetrator.^[211] As such, the victim will have to attribute responsibility on the state before being able to access recourse for domestic violence at either the regional or the international level.