Domestic Violence offences and the amendments to the Criminal Procedure Act, No 51 or 1997

-Zinta van der Linde

LLB (UP), Attorney at JJR Inc.

Reference to:

Criminal Related Matters Amendment Act, No 12 of 2021

Criminal Procedure Act, No 51 of 1997 (“Criminal Procedure Act”)

Domestic Violence Act, No 116 of 1998 (“Domestic Violence Act”)

During this important month celebrating women a lot of victims of domestic violence wonders how much water their interim or final protection order holds against their abuser. I interpose to state that male victims too afraid of being the “laughing stock” at police stations but also victims of domestic violence deserve and have the same right to be recognised. Victims approach the SAPS with their protection order and proof that their abuser contravened it without much assistance from Madam-Justice for reasons, well that could be addressed in its own entire article.

Though the wheel of justice turns slowly the snail pace cannot be accepted in domestic violence cases as the victim more often than not has to return to conditions with his or her abuser.

Previously an attorney or alleged perpetrator could too easily negotiate police bail at certain police stations or what is called prosecutor bail at most stations for the abuser to be released back into society after allegations of domestic violence is made. The negotiations would usually be based on the virtue that such release is in the interest of justice and the society. A measly amount would be set for bail and the abuser too easily returns to the victim.

Luckily the Legislator has shown a rainbow over the nebulas cloud of bail and domestic violence for victims scared and who is juris-faithless.

The Legislator has amended the Criminal Procedure Act to allow for persons who are in domestic relationships and who has contravened any prohibition, condition obligation or order to no longer be afforded with the opportunity to before his/her first appearance be released on police or prosecutor bail. Then, at the first appearances of the perpetrator the prosecutor is obliged to oppose bail or provide reasons to convince the Court why he/she is not opposing bail.

Two requirements need to be met before releasing a perpetrator on bail: There ought to have been a pre-trial setting out the “desirability” of releasing the accused AND the view of the person against whom the offence was allegedly committed.  Both these requirements must be met whereas in the past the one or the other could have been condoned by Court.

The word desirability has always been relative and easily measured against the backdrop of professional success or what the community thinks of the perpetrator. As most victims of domestic violence would have undoubtedly experienced is that the abuser never abuses in the presence of other people and “society”, but in the “safety” and privacy of their home.

Now the Court must consider when releasing a person on bail if the abuser will endanger the victim. This is a victory. For example the perpetrator is an excellent school teacher leading children into a bright future but every night behind closed doors his fierce tongue is scolding his domestic partner into a state where no confidence, joy or psychological health growths. Society never hears this. Or, the perpetrator is a charismatic leader who at night punches frustration into the body of the victim where society will never see the bruises. The victim is not safe in the abuser’s presence. The victim is endangered. Focus is shifted to the interest of the victim rather than the interest of society. The abuser ought not to be released on bail.

The aforesaid Court’s consideration is given against the backdrop of the threat of violence against the victim, any resentment the abuser may harbour, disposition of violence as is evident from his past conduct, in other words repetitive conduct, frequency of a particular part of offence, previous domestic violence orders and, evidence that accused previously committed an offence and previously released on bail.

Notwithstanding any provisions of the Criminal Procedure Act where an accused is charged with a domestic violence the Courts shall order that the accused be detained in custody until the legal criminal process hammered the last nail in the coffin.

Although the amendments are brand new and not tested against president, victims can (hopefully) start to rest at night knowing that their abuser is locked behind bars.

Vul’ indlela for the real protection!

Vul’ indlela to a safer country!

(Adapted from Brenda Fassie’s Vul’ indlela)

Protection Orde