oa De Rebus - Understanding certain provisions of the Domestic Violence Act : a practitioner's perspective : practice note
The Domestic Violence Act 116 of 1998 (the Act) was regarded as a step in the right direction towards acknowledging that violence against the vulnerable, especially women and children, was an issue demanding immediate and efficient attention. This Act succeeded the defunct Prevention of Family Violence Act 133 of 1993. The purpose of the Act, inter alia, is to afford victims of domestic violence maximum protection of the law. Nearly 20 years later, we can ask ourselves: What has been achieved? At the inception of the Act a handful of cases were reported and to date the numbers continue to increase. In Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality, Amicus Curiae) 2006 (2) SA 289 (CC) the appellant challenged, inter alia, the constitutional validity of s 8 of the Act, in particular the issuing of a protection order accompanied by a warrant of arrest. He argued that this infringed on the right to freedom and security of person, a fair trial and access to courts as it enabled the holder of a warrant to summarily cause an arrest. The court rejected the applicant's argument. It held that the operation of a warrant of arrest was suspended on condition that the order is complied with. Clearly this is not what was envisaged by the drafters of statutes. The preamble of the Act states that the purpose of the Act, inter alia, is to uphold the international obligation to end violence against women and children. However, statistics show that South Africa is failing in its role as cases of domestic violence continue to be reported. Is the Act a failure? A study of selected key provisions of the Act might provide insight.
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