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CHAPTER 2

THE PROBLEM

3. THE PREVENTION OF FAMILY VIOLENCE ACT, ACT 133 OF 1993

This Act came into operation on 1 December 1993 and provides for the following:

(a) the granting of interdicts with regard to family violence;

(b) an obligation on certain persons to report cases of ill-treatment of children, and

(c) the conviction of a husband of the rape of his wife.

Section 2(1) of the Act provides that any party to a marriage or any other party who has a material interest in the matter on behalf of the applicant may apply to a judge or magistrate in chambers for an interdict against the other party to the marriage in which the latter is prohibited from performing any of the following acts:

(a) assaulting or threatening the applicant or a child living with the parties or with either of them [section 2(1)(a)];

(b) entering the matrimonial home or other place where the applicant is resident, or a specified part of such home or place or a specified area in which such home or place is situated [section 2(1)(b)];

(c) preventing the applicant or a child who ordinarily lives in the matrimonial home from entering and remaining in the matrimonial home or a specified part of the matrimonial home [section 2(1)(c)]; or

(d) committing any other act specified in the interdict [section 2(1)(d)].

It is interesting to note that the words "parties to a marriage" are construed as including a man and a woman who are or were married to each other according to any law or custom and also a man and a woman who ordinarily live or lived together as husband and wife, although not married to each other.

In granting the interdict the judge or magistrate must make the following orders:

(a) authorise the issue of a warrant for the arrest of the respondent [section 2(2)(a)];

(b) suspending the execution of such warrant subject to such conditions regarding compliance with the interdict as he or she deems fit [section 2(2)(b)]; and

(c) advise the respondent that he or she may, after 24 hours, notice to the applicant and the court concerned, apply for the amendment or setting aside of the interdict [section 2(2)(c)].

Provision is made for a speedy, inexpensive procedure to obtain an interdict without legal representation. The application is made by way of affidavit. The affidavit should state the facts upon which the application is based and the nature of the order applied for. Supporting affidavits may also accompany the application which must be handed to the clerk of the court. On receiving the necessary documentation, the clerk of the court must immediately submit it to a judge or magistrate in chambers.

The interdict and the orders will be of force and effect only after service on the respondent. After service has been effected, the registrar must deliver or send a certified copy of the interdict and the original warrant of arrest to the applicant. If the applicant requires the execution of the warrant he or she must present an affidavit to a peace officer in which it is stated that the respondent has breached one or more of the conditions of suspension of the warrant. After the respondent has been arrested, he or she may be released only if his or her release is ordered by a judge or a magistrate. He or she must, however, be brought before a judge or magistrate as soon as possible but not later than 24 hours after his or her arrest. A summary inquiry into the alleged breach of the conditions of the order suspending the warrant is then held by a judge or magistrate. If the respondent has contravened the interdict he or she can be sentenced to a fine (no maximum is specified) or up to 12 months' imprisonment or both.

Section 4 of the Act further provides for an obligation to report the ill-treatment of children. It provides that any person who examines, treats, attends to, advises, instructs or cares for any child in circumstances which ought to give rise to a reasonable suspicion that such child has been ill-treated or suffers from any injury the probable cause of which was deliberate must immediately report such circumstances to a police official, a commissioner of child welfare or a social worker referred to in section 1 of the Child Care Act, 1983.

In the light of the comments received and the criticism that has been voiced in various legal periodicals the question arises as to whether the application and workability of the Act should be revised.