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Continued State Liability for Police Inaction in Assisting Victims of Domestic Violence: A Reflection on the Implementation of South Africa's Domestic Violence Legislation

Published online by Cambridge University Press:  11 April 2019

Amanda Spies Open the ORCID record for Amanda Spies [Opens in a new window]
Amanda Spies*
Affiliation:
University of South Africa
*
spiesa@unisa.ac.za
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Abstract

Now that it has been in operation for 20 years, it is necessary to reflect on the impact the South African Domestic Violence Act has had on women's lives. This article analyses this key legislation and the police's duty to ensure its proper implementation. It focuses on the reports of the Independent Complaints Directorate and Civilian Secretariat of Police, the bodies responsible for measuring police compliance with the act. The reports identify serious transgressions, highlighting the police's perception that domestic violence is a private affair with which it should not interfere. This perception plays a particularly subtle and destructive role in legitimizing, supporting and permitting violence against women. In focusing on key court decisions in which the state (police) was held financially accountable for the failure to protect women against violence, the author highlights the importance of challenging the social and legal understanding of women's experiences with violence in promoting a system that takes account of those experiences.

Keywords

Domestic violenceimplementationpolicestate accountabilitySouth Africa
Type
Research Article
Information
Journal of African Law , Volume 63 , Issue 1 , February 2019 , pp. 53 - 77
Copyright
Copyright © SOAS, University of London 2019 

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Footnotes

*

LLB, LLM (University of Pretoria), PhD (University of the Witwatersrand). Admitted attorney of the High Court of South Africa. Associate professor of law, Department of Public, Constitutional and International Law, University of South Africa.

References

1 Vogelman, L and Eagle, G “Overcoming endemic violence against women in South Africa” (1991) 18 Social Justice 209 at 209Google Scholar; H Combrinck “The dark side of the rainbow: Violence against women in South Africa after ten years of democracy” (2005) Acta Juridica 171 at 171; L Artz and D Smythe “Feminism vs the state? A decade of sexual offences law reform in South Africa” (2007) Agenda 6 at 6; C Albertyn, L Artz, H Combrinck, S Mills and L Wolhuter “Women's freedom and security of the person” in E Bonthuys and C Albertyn (eds) Gender, Law and Justice (2007, Juta) 295 at 321.

2 Vogelman and Eagle “Overcoming endemic violence”, ibid.

3 Statistics South Africa South Africa Demographic and Health Survey: Key Indicator Report 2016 (2017) at 54.

4 Prevention of Family Violence Act, sec 2, as discussed in Fedler, J “Lawyering domestic violence through the Prevention of Family Violence Act 1993: An evaluation after a year in operation” (1995) 112 South African Law Journal 231 at 231Google Scholar.

5 Id at 234; Smythe, D “South Africa's response to domestic violence” in Benninger-Budel, C (ed) Due Diligence and its Application to Protect Women from Violence (2008, Martinus Nijhoff) 161 at 167Google Scholar.

6 Meintjies, S “The politics of engagement: Women transforming the policy process - domestic violence legislation in South Africa” in Goetz, AM and Hassim, S (eds) No Shortcuts to Power: African Women in Politics and Policy Making (2003, ZED Books) 140 at 149Google Scholar.

7 Prevention of Family Violence Act, sec 1(2); Fedler “Lawyering domestic violence”, above at note 4 at 239.

8 See the Constitution, secs 9, 10 and 12; Albertyn et al “Women's freedom and security”, above at note 1 at 322.

9 Id, sec 7(2) states: “The state must respect, protect and fulfil the rights in the Bill of Rights”. Sec 12(1)(c) states: “Everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.” See Currie, I and de Waal, J The Bill of Rights Handbook (6th ed, 2013, Juta) at 282Google Scholar.

10 Albertyn et al “Women's freedom and security”, above at note 1 at 323.

11 DVA, sec 4 sets out the procedure to apply for a protection order.

12 Under id, sec 1, a domestic relationship refers to: a marital relationship according to any law, religion or custom; couples living together; parents of children; family members; engaged couples; and individuals sharing a residence with anyone in any of these relationships, also including a same-sex relationship. Sec 1 further defines domestic violence as: physical abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the complainant's residence without consent where they do not live together; and any other controlling or abusive behaviour towards a complainant. Artz, L and Smythe, D “Bridges and barriers: A five year retrospective on the domestic violence act” (2005) Acta Juridica 200 at 201Google Scholar.

13 Id, sec 3. The National Instructions to the Domestic Violence Act 7 of 1999 (National Instructions) expand further and impose certain obligations on the police in dealing with domestic violence.

14 Sec 8(4)(b) (emphasis added). DVA, sec 8(5) states that, in considering whether a complainant may suffer imminent harm, the officer must take into account: the risk to the safety, health or wellbeing of the complainant; the seriousness of the conduct comprising the alleged breach of the protection order; and the length of time since the alleged breach occurred.

15 National Instructions, secs 3–15; Vetten, L “Police accountability and the Domestic Violence Act 1998” (2017) 59 South African Crime Quarterly 7 at 9Google Scholar.

16 P Paranzee, L Artz and K Moult Monitoring the Implementation of the Domestic Violence Act: First Research Report 2000–2001 (2001); Albertyn et al “Women's freedom and security”, above at note 1 at 328.

17 Artz, L “The weather watchers: Gender, violence and social control” in Steyn, M and Zyl, M van (eds) The Prize and the Price: Shaping Sexualities in South Africa (2009, HSRC Press Books) 169 at 186Google Scholar.

18 Ibid.

19 Paranzee, Artz and Moult Monitoring the Implementation, above at note 16 at 81; Govender, D “Is domestic violence being policed in South Africa?” (2015) 28 Acta Criminologica 32Google Scholar; Retief, R and Green, S “Some challenges in policing domestic violence” (2015) 51 Social Work 135 at 135Google Scholar.

20 Albertyn et al “Women's freedom and security”, above at note 1 at 329.

21 Artz “The weather watchers”, above at note 17 at 183.

22 Albertyn et al “Women's freedom and security”, above at note 1 at 329.

23 Artz “The weather watchers”, above at note 17 at 183; Khayelitsha Commission Towards a Safer Khayelitsha: Report of the Commission of Inquiry into Allegations of Police Inefficiency and a Breakdown in Relations between SAPS and the Community of Khayelitsha (2014) 140 at 141.

24 Artz “The weather watchers”, above at note 17 at 183.

25 DVA, sec 18.

26 Independent Police Investigative Directorate Domestic Violence Act Report (2010).

27 Id at 4–11.

28 Id at 24.

29 Ibid.

30 Independent Police Investigative Directorate Domestic Violence Act Report (January 2011–March 2012) at 1.

31 Ibid.

32 Civilian Secretariat for Police Service Report on the Implementation of the Domestic Violence Act (April–September 2012) at 14.

33 Id at 17.

34 Civilian Secretariat for Police Service Report on the Implementation of the Domestic Violence Act (second quarter 2013) at 1. DVA, sec 5(3)(a) states: “An interim protection order must be served on the respondent in the prescribed manner and must call upon the respondent to show cause on the return date specified in the order why a protection order should not be issued.” National Instructions, sec 3 states: “A member may be ordered by the court to serve an interim or final protection order. If a member is ordered to serve an interim protection order, the member must serve the order without delay as it only becomes binding on the respondent once the order has been served on him or her. As long as an interim protection order remains unserved, the complainant may be in danger. A final protection order becomes binding immediately upon it being issued even though it may not have been served.”

35 Civilian Secretariat for Police Service Report on the Implementation of the Domestic Violence Act (second quarter 2013) at 3.

36 Id at 2.

37 Id at 1.

38 Civilian Secretariat for Police Service Report on the Implementation of the Domestic Violence Act (October 2014–March 2015) at 4.

39 Ibid.

40 Id at 14; regulation 14(1)(a) of the Firearms Control Act Regulations, 26 March 2004, issued under the Firearms Control Act 60 of 2000.

41 Civilian Secretariat for Police Report on the Implementation of the Domestic Violence Act (October 2016–March 2017) at 1.

42 Ibid.

43 Id at 6.

44 Id at 4.

45 Schneider, E “The violence of privacy” in Albertson, M, Fineman, and Mykitiuk, R (eds) The Public Nature of Private Violence (1994, Routledge) 36 at 44Google Scholar.

46 Hanna, C “No right to choose: Mandated victim participation in domestic violence prosecutions” (1996) 109 Harvard Law Review 1849 at 1869Google Scholar.

47 Goldfarb, S “Violence against women and the persistence of privacy” (2000) 61 Ohio State Law Journal 1 at 20Google Scholar.

48 Miccio, K “Exiled from the province of care: Domestic violence, duty and conceptions of state accountability” (2005) 37 Rutgers Law Journal 1 at 42Google Scholar.

49 Goldfarb “Violence against women”, above at note 47 at 21.

50 Id at 22.

51 D Weissman “The personal is political and economic: Rethinking domestic violence” (2007) Brigham Young University Law Review 387 at 395.

52 Ibid.

53 Schneider “The violence of privacy”, above at note 45 at 43.

54 Weissman “The personal is political and economic”, above at note 51 at 395.

55 Schneider, E “Domestic violence law reform in the twenty-first century: Looking back and looking forward” (2008) 42 Family Law Quarterly 353 at 356Google Scholar.

56 Coker, D “Crime control and feminist law reform in domestic violence law: A critical review” (2001) 4 Buffalo Criminal Law Review 801 at 855CrossRefGoogle Scholar; Harris, A “Gender violence, race and criminal justice” (2000) 52 Stanford Law Review 777 at 785CrossRefGoogle Scholar.

57 Schneider, E “Particularity and generality: Challenges of feminist theory and practice in work on woman-abuse” (1992) 67 New York University Law Review 520 at 539Google Scholar.

58 Ibid.

59 Cahn, N and Meier, J “Domestic violence and feminist jurisprudence: Towards a new agenda” (1995) 4 Public Interest Law Journal 339 at 344Google Scholar.

60 Ibid.

61 Id at 356.

62 Artz “The weather watchers”, above at note 17 at 182.

63 Id at 184.

64 Minow, M “Words and the door to the land of change: Law, language and family violence” (1990) 43 Vanderbilt Law Review 1665 at 1671Google Scholar.

65 Artz “The weather watchers”, above at note 17 at 171.

66 Id at 188.

67 Artz, L and Smythe, D “Introduction: Should we consent?” in Artz, L and Smythe, D (eds) Should We Consent? Rape Law Reform in South Africa (2008, Juta) 1 at 15Google Scholar.

68 Ibid.

69 du Bois, F “State liability in South Africa: A constitutional remix” (2010) 25 Tulane European & Civil Law Reform 139 at 140Google Scholar; Boonzaier, L “State liability in South Africa: A more direct approach” (2013) 130 South African Law Journal 330 at 331Google Scholar.

70 State Liability Act, sec 1 states: “Any claim against the State which would, if that claim had arisen against a person, be the ground of an action in any competent court, shall be cognizable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any servant of the State acting in his capacity and within the scope of his authority as such servant.” A Price “State liability and accountability” (2015) 1 Acta Juridica 313 at 317.

71 The Constitution, sec 7(2) states: “The state must protect, promote and fulfill the rights in the Bill of Rights”. Id, sec 39(2) states: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” Price, id at 325.

72 Miccio “Exiled from the province of care”, above at note 48 at 18.

73 Id at 22.

74 The Constitution, sec 35(3) states: “Every accused person has the right to a fair trial, which includes the right … (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.”

75 2000 (2) SA 425.

76 Prevention of Family Violence Act, sec 3(5) states: “The provisions of the Criminal Procedure Act 51 of 1977, relating to the procedure which shall be followed in respect of an enquiry referred to in s 170 of that Act, shall apply mutatis mutandis in respect of an enquiry under ss (4).” Criminal Procedure Act 51 of 1977, sec 170 states: “(1) An accused at criminal proceedings who is not in custody and who has not been released on bail, and who fails to appear at the place and on the date and at the time to which such proceedings may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment prescribed under ss (2). (2) The court may, if satisfied that an accused referred to in ss (1) has failed to appear at the place and on the date and at the time to which the proceedings in question were adjourned or has failed to remain in attendance at such proceedings as so adjourned, issue a warrant for his arrest and, when he is brought before the court, in a summary manner enquire into his failure so to appear or so to remain in attendance and, unless the accused satisfies the court that his failure was not due to fault on his part, convict him of the offence referred to in ss (1) and sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.” (Emphasis added)

77 The Constitution, sec 167(5) states: “The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of a similar status, before that order has any force.”

78 Baloyi, above at note 75, para 3.

79 Id, paras 11–12 (footnotes omitted).

80 Id, paras 16–19 and 33; Andrews, P “The Constitutional Court provides succor for victims of domestic violence: S v Baloyi” (2000) 16 South African Journal on Human Rights 337 at 340Google Scholar.

81 Baloyi, above at note 75, paras 11–12. It should be noted that the Constitutional Court heard a similar matter with almost identical facts in Omar v Government of the Republic of South Africa 2006 (2) SA 289 (CC) under the DVA, which replaced the Prevention of Family Violence Act. The Omar judgment also highlighted the prevalence of domestic violence, the scant protection by the criminal justice system and the negative impact domestic violence has on women. The court reached a similar finding to that in Baloyi.

82 2001 (4) SA 938 (CC).

83 Combrinck “The dark side of the rainbow”, above at note 1 at 177.

84 Carmichele, above at note 82, para 3.

85 Ibid.

86 Id, paras 32–41. The Constitution, sec 39 states: “(1) When interpreting the Bill of Rights, a court, tribunal or forum - (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.”

87 Carmichele, above at note 82, para 44.

88 Id, paras 81–83.

89 Carmichele v Minister of Safety and Security and Another 2003 (2) SA 656 (C).

90 2002 (6) SA 431 (SCA).

91 Combrinck “The dark side of the rainbow”, above at note 1 at 180.

92 Van Duivenboden, above at note 90, para 22.

93 2003 (1) SA 389 (SCA), para 13.

94 Id, para 3.

95 Id, paras 12–13.

96 Minister of Safety and Security and Another v Carmichele 2004 (2) BCLR 133 (SCA) (Carmichele SCA).

97 Combrinck “The dark side of the rainbow”, above at note 1 at 182.

98 Carmichele SCA, above at note 96, para 43.

99 Albertyn et al “Women's freedom and security”, above at note 1 at 335.

100 K v Minister of Safety and Security 2005 (6) SA 419 (CC) (K); F v Minister of Safety and Security 2012 (1) SA 536 (CC) (F).

101 K, id, para 53.

102 Id, paras 52–53.

103 F, above at note 100, para 1.

104 Id, para 18.

105 Id, para 66.

106 Artz “The weather watchers”, above at note 17 at 186.

107 2011 (2) SACR 67 SCA.

108 Id, para 6.

109 Id, paras 8–10.

110 Ibid.

111 Id, para 19.

112 Id, para 32.

113 Id, para 35.

114 Artz and Smythe “Bridges and barriers”, above at note 12 at 220.

115 Paranzee, Artz and Moult Monitoring the Implementation, above at note 16 at 83–84.

116 Schneider “Particularity and generality”, above at note 57 at 558.

117 Paranzee, Artz and Moult Monitoring the Implementation, above at note 16 at 84.

118 2012 (2) SACR 205 (KZD).

119 Id, para 6.

120 Id, paras 6–11.

121 Id, para 1.

122 Id, para 15.

123 Schuerman, SE “Establishing a tort duty for police failure to respond to domestic violence” (1992) 34 Arizona Law Review 355 at 358Google Scholar.

124 2016 (1) SACR 468 (SCA).

125 Id, para 2.

126 Ibid.

127 Ibid.

128 Id, para 3.

129 Id, para 32.

130 Ibid.

131 Id, para 33. The minister was held liable for R200,000 in respect of the legal duty the police owed her under the DVA, R70,000 for her unlawful arrest and R10,000 for assault, as she was man-handled by the police upon her arrest.

132 Artz and Smythe “Bridges and barriers”, above at note 12 at 220.

133 Paranzee, Artz and Moult Monitoring the Implementation, above at note 16 at 84.

134 2010 (2) SA 356 (SCA).

135 Id, para 2.

136 2015 JDR 2094 (SCA).

137 Id, para 2.

138 Id, para 5.

139 Id, para 6.

140 Id, para 8.

141 Ibid.

142 Ibid.

143 Id, para 15.

144 Id, para 24.

145 Nathan, A “At the intersection of domestic violence and guns: The public interest exception and the Lautenberg amendment” (2000) 85 Cornell Law Review 822 at 824Google Scholar.

146 Fineman, MA “Introduction” in Fineman, MA and Thomadsen, NS (eds) At the Boundaries of Law: Feminism and Legal Theory (1991, Routledge) i at xivGoogle Scholar.

147 Burns, S “Notes from the field: A reply to Professor Colker” (1990) 13 Harvard Women's Law Journal 189 at 196Google ScholarPubMed.

148 Gouws, A “The public discourse on rape in South Africa: Turning women into vulnerable victims” in Verwoerd, M and Lopes, C (eds) Sexualised Violence in the National Debate: Cross Border Observations on India and South Africa (2015, Heinrich Böll Stiftung) 66 at 70Google Scholar.

149 Combrinck “The dark side of the rainbow”, above at note 1 at 185.

150 Paranzee, Artz and Moult Monitoring the Implementation, above at note 16 at 83.

151 Ibid.

152 Ibid.

153 Artz and Smythe “Introduction”, above at note 67 at 15.

154 Hunt, A “Rights and social movements: Counter-hegemonic strategies” in McCann, M (ed) Law and Social Movements (2006, Ashgate) 309 at 309Google Scholar.

155 For a discussion of the viewpoint of a legal realist, see G Rosenberg The Hollow Hope: Can Courts Bring About Social Change? (1991, University of Chicago Press). For the viewpoints of critical legal scholars, see Gabel, P “The phenomenology of rights consciousness and the pact of the withdrawn selves” (1984) 62 Texas Law Review 1563Google Scholar; and Kelman, M A Guide to Critical Legal Studies (1987, Harvard University Press)Google Scholar.

156 Holzmeyer, C “Human rights in an era of neoliberal globalization: The Alien Tort Claims Act and grassroots mobilization in Doe v Unocal” (2009) 43 Law & Society Review 271 at 273CrossRefGoogle Scholar; Klaaren, J, Dugard, J and Handmaker, J “Public interest litigation in South Africa: A special issue introduction” (2011) 27 South African Journal on Human Rights 1CrossRefGoogle Scholar.

157 Holzmeyer, ibid.

158 Ibid.

159 Ibid.

160 Ibid.

161 Klaaren, Dugard and Handmaker “Public interest litigation”, above at note 156 at 2; M McCann “Reform litigation on trial” (1992) 17 Law and Social Inquiry 715 at 716.

162 McCann, M “Legal mobilization and social reform movements: Notes on theory and its application” in McCann, M (ed) Law and Social Movements (2006, Ashgate) 225 at 230Google Scholar; Dugard, J and Langford, M “Art or science? Synthesising lessons from public interest litigation and the dangers of legal determinism” (2011) 27 South African Journal on Human Rights 39 at 55CrossRefGoogle Scholar; Houtzager, P and White, L “The long arc of pragmatic economic and social rights advocacy” in White, L and Perelman, J (eds) Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty (2011, Stanford University Press) 172Google Scholar.

163 Holzmeyer “Human rights in an era”, above at note 156 at 275.

164 Id at 274.

165 C Smart Feminism and the Power of Law (1989, Routledge) at 144.

166 Ibid.

167 Id at 145.

168 Anleu, SL Roach Law and Social Change (2000, SAGE Publications) at 172Google Scholar.

169 Ibid.

170 Ibid.

171 Schneider “The violence of privacy”, above at note 45 at 44–45.

172 Vogelman and Eagle “Overcoming endemic violence”, above at note 1 at 214.

173 Romany, C “Black women and gender equality in a new South Africa: Human rights law and the intersection of race and gender” (1996) 21 Brooklyn Journal of International Law 857 at 868Google Scholar; NJ Sokoloff and I Dupont “Domestic violence at the intersections of race, class, and gender” (2005) Violence Against Women 38 at 43; Bograd, M “Strengthening domestic violence theories: Intersections of race, class, sexual orientation, and gender” (1999) 25 Journal of Marital and Family Therapy 275 at 277CrossRefGoogle ScholarPubMed.

174 Andrews, PE “Violence against women in South Africa: The role of culture and the limitations of the law” (1999) 8 Temple Political & Civil Rights Law Review 425 at 430Google Scholar.

175 Khayelitsha Commission Towards a Safer Khayelitsha, above at note 23 at 140.

176 Conaghan, J “Intersectionality and the feminist project in law” in Grabham, E, Cooper, D, Krishnadas, J and Herman, D (eds) Intersectionality and Beyond: Law, Power and the Politics of Location (2009, Routledge-Cavendish) 21 at 29Google Scholar.

177 Khayelitsha Commission Towards a Safer Khayelitsha, above at note 23 at 459.

178 Weissman “The personal is political and economic”, above at note 51 at 388.

179 Bonthuys, E “Institutional openness and resistance to feminist arguments: The example of the South African Constitutional Court” (2008) 20 Canadian Journal on Women and the Law 1 at 35Google Scholar.