[1] Section 12(1) of the Constitution, 1996.
[2] The Firearms Control Act seeks to restrict those individuals with a history of domestic violence from owning firearms, given their role in domestic violence and femicide.
[3] Section 1 of the DVA.
[4] Section 10 of the Constitution.
[5] Section 11 of the Constitution.
[6] Section 12(1) of the Constitution.
[7] A list of countries that have signed the Maputo Protocol can be accessed here.
[8] A list of countries that have signed the Maputo Protocol can be accessed here.
[9] Sections 9 and 12 of the Constitution.
[10] Tshabalala v S and a related matter (Commission for Equality and another as amici curiae) 2020 (3) BCLR 307 (CC) at para 98 and 99.
[11] Section 56 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
[12] Section 1 of the DVA.
[13] Section 1 of the DVA.
[14] Section 1 of the DVA.
[15] Throughout this memorandum the terms "victim" and "complainant" will be used interchangeably, as necessitated by context.
[16] Throughout this memorandum the terms "abuser" and "respondent" will be used interchangeably, as necessitated by context.
[17] Section 1 of the DVA.
[18] Refer to https://www.saps.gov.za/services/protection_order.php.
[19] Blue Chip 2 (Pty) Limited trading as Blue Chip 49 v Ryneveldt and others (National Credit Regulator as amicus curiae) [2016] JOL 36049 (SCA).
[20] See the Prevention of Family Violence Act, 1993 under which the martial rape exemption was abolished.
[21] Section 1 of the DVA.
[22] Section 1 of the DVA.
[23] Section 1 of the DVA.
[24] Section 1 of the DVA.
[25] Section 1 of the DVA.
[26] Section 1 of the DVA.
[27] Section 1 of the DVA.
[28] Section 1 of the DVA.
[29] Section 1 of the DVA.
[30] Section 4(1) of the DVA.
[31] Under the terms of Section 1 of the DVA, a domestic relationship means "a relationship between a complainant and a respondent in any of the following ways: (a) they are or were married to each other, including marriage according to any law, custom or religion; (b) they (whether they are of the same or of the opposite sex) 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; (c) they 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); (d) they are family members related by consanguinity, affinity or adoption; (e) they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or (f) they share or recently shared the same residence."
[32] Section 1 of the DVA.
[33] Section 4(4) of the DVA.
[34] Section 4(3) of the DVA.
[35] Section 7(6) of the DVA.
[36] Section 7(3) and 7(4) of the DVA.
[37] Section 7(7)(b) of the DVA.
[38] Section 7(7)(a) of the DVA.
[39] Section 7(1) of the DVA.
[40] Section 7(1) of the DVA.
[41] Section 7(1) of the DVA.
[42] Section 5(2) of the DVA; Section 3(2) of the PFH Act.
[43] Section 4(5) of the DVA; Section 2(5) of the PFH Act.
[44] Section 4(3) of the DVA.
[45] Section 4(3) of the DVA
[46] Section 4(4) of the DVA.
[47] Section 5(6) of the DVA.
[48] Section 6(7) of the DVA.
[49] Section 5 of the DVA.
[50] Section 6(7) of the DVA.
[51] Section 1 of the DVA.
[52] Section 9(8) of the PFH Act.
[53] Section 5(2) of the DVA.
[54] Section 5(3) of the DVA.
[55] Section 6(2) of the DVA.
[56] Section 6(1) of the DVA.
[57] Section 10 of the DVA.
[58] Section 9(8) of the PFH Act.
[59] Refer to: Domestic Violence. Justice College, www.justice.gov.za/juscol/docs/article-02.html.
[60] Form 2 in terms of Section 4(1) of the DVA.
[61] All forms are available at: https://www.justice.gov.za/forms/form_dva.htm; or see application Form 2 PDF at https://www.justice.gov.za/forms/dva/dva_form%2002.pdf.
[62] Form 2 under Section 4(1) of the DVA.
[63] If an applicant does not have this information, she will need to give some indication as to where the respondent can be found.
[64] Section 5(1) of the DVA; see also: Justice Department FAQs on Domestic Violence at https://www.justice.gov.za/vg/dv-faq.html.
[65] Section 11(1) of the DVA.
[66] Section 11(1) of the DVA.
[67] Section 11(1)(b) of the DVA.
[68] Section IV.C.(a)(i) of CEDAW Recommendation 35.
[69] Section 7 of the DVA.
[70] Section 5(5) of the DVA.
[71] Section 5(2) of the DVA
[72] Section 4(5) of the DVA.
[73] Under the CPA a peace officer includes "any magistrate, justice, police official, member of the prisons service as defined in Section 1 of the Prisons Act 1959 (Act 8 of 1959) and in relation to any area, offence, class of offence or power referred to in a notice issued under Section 334(1), any person who is a peace officer under that section."
[74] Section 3 of the DVA.
[75] Section 5(1) of the DVA.
[76] In terms of Section 1 of the DVA, an act of "Domestic violence" includes: "physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the complaint's residence without consent, where the parties do not share the same residence; or any other controlling or abusive behavior towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant."
[77] Section 5(2) of the DVA.
[78] The "Return Date" being not less than 10 days after notice of the proceedings against the abuser has been served on the abuser (Section 5(5) of the DVA).
[79] Section 6(1) of the DVA.
[80] Section 6(2) and (4) of the DVA.
[81] Section 7 of the DVA.
[82] Section 7(1) of the DVA.
[83] Section 7(3) of the DVA.
[84] See commentary from: Lillian Artz "Tough Choices: Difficulties facing magistrates in applying Protection Orders" (2004) SA Crime Quarterly No 8.
[85] Section 7(2) of the DVA.
[86] Under the CPA, a peace officer includes "any magistrate, justice, police official, member of the prisons service as defined in Section 1 of the Prisons Act 1959 (Act 8 of 1959) and in relation to any area, offence, class of offence or power referred to in a notice issued under Section 334(1), any person who is a peace officer under that section."
[87] Section 7(2) of the DVA.
[88] KS v AM (A3032/2016) [2017] ZAGPJHC 297; 2018 (1) SACR 240 (GJ) (24 October 2017) at para 21.
[89] Section 7(6) of the DVA.
[90] Section 7(4) of the DVA.
[91] Section 4(1) of the DVA.
[92] Under Section 1 of the DVA, a domestic relationship means "a relationship between a complainant and a respondent in any of the following ways: (a) they are or were married to each other, including marriage according to any law, custom or religion; (b) they (whether they are of the same or of the opposite sex) 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; (c) they 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); (d) they are family members related by consanguinity, affinity or adoption; (e) they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or (f) they share or recently shared the same residence."
[93] Section 1 of the DVA.
[94] Section 4(4) of the DVA.
[95] Section 7(4) of the DVA.
[96] Section 1 of the DVA.
[97] See for example Mutale v Goldner (A129/14) [2014] ZAGPPHC 637 (25 August 2014).
[98] Section 7(7) of the DVA.
[99] Section 15 of the DVA.
[100] Section 1 of the DVA.
[101] Section 2 of the DVA.
[102] Section 51 of the CPA, a peace officer includes "any magistrate, justice, police official, member of the prisons service as defined in Section 1 of the Prisons Act 1959 (Act 8 of 1959) and in relation to any area, offence, class of offence or power referred to in a notice issued under Section 334(1), any person who is a peace officer under that section."
[103] Section 3 of the DVA.
[104] Section 73 of the CPA.
[105] Section 5 and 6 of the DVA.
[106] National Directives and Instructions on conducting a Forensic Examination on survivors of Sexual Offence cases.
[107] Section 5(2) of the DVA.
[108] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 102.
[109] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 114.
[110] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 122.
[111] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 127.
[112] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 127.
[113] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 128.
[114] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 139.
[115] LAWSA, Criminal Law (Volume 11 - Third Edition) at page 84.
[116] LAWSA, Criminal Law (Volume 11 - Third Edition) at page 84.
[117] "Intention" is one of the requirements for the various crimes set out in the Criminal Law (Sexual Offences and Related Matters) Amendment Act.
[118] Section 164 (2) of the CPA.
[119] K 1958 3 SA 420 (A) 421, 425; Z 1960 1 SA 739 (A); D 1963 3 SA 263 (E) 267.
[120] Sikunyana 1961 3 SA 549 (E) 551; D 1998 1 SACR 33 (T).
[121] On necessity, see supra IV C and on presumed consent infra IV E.
[122] Strauss 1964 SALJ 179 183, 187.
[123] Criminal Law (Sexual Offences and Related Matters) Amendment Act.
[124] Matsemela 1988 2 SA 254 (T); D 1998 1 SACR 33 (T) 39d–e.
[125] "What is consent?" Buyi Nkoyane, https://www.up.ac.za/speakoutup/article/2383078/what-is-consent
[126] CR Snyman, Criminal Law (South Africa: LexisNexis, 2014), page 103-111.
[127] Sections 77 to Sections 79 of the CPA.
[128] Section 162 of the CPA.
[129] Section 164 of the CPA.
[130] Section 163 of the CPA.
[131] (656/12) [2013] ZASCA 124; 2014 (1) SACR 29 (SCA); [2014] 2 All SA 141 (SCA) (23 September 2013).
[132] Section 203 of the CPA
[133] Section 195 of the CPA
[134] Section 201 of the CPA
[135] Section 203, 195 and 201 of the CPA.
[136] Section 192 of the CPA.
[137] Matshiva v S 2014 (1) SACR 29 (SCA).
[138] Section 305(3) of the Children's Act.
[139] Section 305(6) of the Children's Act.
[140] Section 305(7) of the Children's Act.
[141] Section 110 of the Children's Act.
[142] Section 283 of the CPA.
[143] 196 (2)SA 537(A) at 540 G.
[144] Section 51 of the Criminal Law Amendment Act.
[145] Section 51 of the Criminal Law Amendment Act.
[146] Omar v Government of the Republic of South Africa and Others (2005) ZACC 17; 2006 (2) SA 289 (CC).
[147] Section 17 of the DVA.
[148] Section 17 of the CPA.
[149] Section 7 of the DVA.
[150] Section 50 of the Criminal Law (Sexual Offences and Related Matters) Amendments Act.
[151] Section 276 of the CPA.
[152] Section 296 of the CPA.
[153] Section 276 of the CPA.
[154] (GA/RES/40/34)
[155] The Service Charter for Victims in South Africa.
[156] S v Ferreira and Others [2004] 4 All SA 373 (SCA) (1 April 2004).
[157] S v Ferreira and Others.
[158] (245/03) [2004] ZASCA 29; [2004] 4 All SA 373 (SCA) (1 April 2004).
[159] S v Ferreira and Others.
[160] S v Ferreira and Others.
[161] Definition of "complainant" in terms of the DVA, 116 of 1998.
[162] Definition of "domestic violence" under the DVA, 116 of 1998.
[163] To access the Code of Good Practice: Handling of Sexual Harassment Cases in Workplaces, please click here.
[164] Definition of "complainant" under the PFH Act.
[165] Section 10(1) of the PFH Act.
[166] Section 10(2) of the PFH Act.
[167] Section 10(3) of the PFH Act.
[168] Section 2(2) of Schedule 8: Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995.
[169] Section 2(4) of Schedule 8: Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995.
[170] Section 7(a) of Schedule 8: Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995.
[171] Section 7(b) of Schedule 8: Code of Good Practice: Dismissal of the Labour Relations Act, 66 of 1995.
[172] Section 20 of the Basic Conditions of Employment Act 75 of 1997.
[173] Section 27 of the Basic Conditions of Employment Act 75 of 1997.
[174] Article 10(f) of the International Labour Organization's Convention on Violence and Harassment.
[175] 130 of 1998.
[176] Section 4 of the Refugees Act 130 of 1998.
[177] Criminal Law Amendment Act.
[178] Refugee Act 130 of 1998.
[179] Military Discipline Bill.
[180] National Prosecuting Authority Act 32 of 1998.
[181] Section 1(2) of the Children's Act, 2005.
[182] Section 1(3) of the English Children Act, 1989 and Sections 60CC(2) and (3) of the Australian Family Law Act, 1975.
[183] Section 9 of the Children's Act.
[184] Section 7(1)(l) of the Children's Act.
[185] P v P 2007 (5) SA 94 (SCA) at paragraph 14.
[186] Section 7 of the Children's Act.
[187] Section 7(1)(g) of the DVA.
[188] Section 7(1)(l) of the Children's Act, 2005.
[189] Section 7(6) of the DVA, 1998.
[190] Article 9 of the Convention on the Rights of the Child.
[191] Article 19 of the Convention on the Rights of the Child.
[192] Section 10 of the Children's Act.
[193] Section 7(l) of the Children's Act, 2005.
[194] Section 26(1) of the Constitution.
[195] Section 26(3) of the Constitution.
[196] 19 of 1998.
[197] Section 4 of the PIE Act.
[198] Section 4(7) of the PIE Act.
[199] Section 4 of the PIE Act.
[200] Section 4 of the PIE Act.
[201] Article 4 of the Maputo Protocol.
[202] Section 14(2)(b) of the Consumer Protection Act.
[203] Section 3 of the Consumer Protection Act.
[204] Article 4 of the Maputo Protocol.
[205] Section 7 of the DVA.
[206] Section 7(c) of the DVA.
[207] Section 7(2) of the DVA
[208] https://www.sahrc.org.za/home/21/files/SAHRC%20GBV%20Research%20Brief%20Publication.pdf
[209] Refer to: https://za.boell.org/sites/default/files/uploads/2013/10/criminaljusticeresponses-assessingimplimentationofdvaingauteng.pdf
[210] Article 4(b) to the Maputo Protocol.
[211] See for example Articles 55 and 56 of the African (Banjul) Charter on Human and Peoples' Rights.
[212] See for example Article 56 of the African (Banjul) Charter on Human and Peoples' Rights.