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Although the aim of the Act is laudable, the manner in which it provides for interdicts appears to be seriously flawed. Concern has been expressed at the apparent disregard for the audi alteram partem rule. There seems to be a general feeling that this problem could be solved if a rule nisi - an interim order with a return date - were granted.
The magistrates of the Cape Peninsula met to discuss the application of the Act and to identify problem areas. The following problem areas, which correspond with those raised in the comments received by the Commission, were identified:
Section 2(1) of the Act reads as follows:
2(1). A judge or magistrate in chambers may, on application in the prescribed manner by a party to a marriage (hereinafter called the applicant) or by any other person who has a material interest in the matter on behalf of the applicant, grant an interdict against the other party to the marriage...........
It seems that the applicability of the Act should be broadened to enable parents to obtain interdicts against their children and vice versa. The question arises whether there is a need to provide some form of relief for family members who are not “parties to a marriage" as defined in section 1(2) of the Act. The Act also appears to be unconstitutional in that, by omission, it denies relief to a party in a homosexual relationship.
The further question arises whether the Act should not be amended to include
family members that fall beyond the immediate family scope, for example an aunt, uncle, niece or nephew. There seems to be the argument that such an amendment would negate the spirit of the Act which is to prevent violence between parties living together as a family.
There appears to be some confusion as to precisely how jurisdiction is conferred on any particular court in terms of the Act as regards the initial application for an interdict. Under the normal rules of civil jurisdiction the applicant must apply to the court having jurisdiction over the respondent. Jurisdiction of the Magistrate’s Court is governed by the Magistrate’s Court Act, 32 of 1944, and the Magistrate’s Court has jurisdiction only in respect of the persons as described in section 28 of the Magistrate’s Court Act. It seems that under these circumstances section 28(1)(d) is applicable since the whole cause of action arose in that court’s jurisdiction. However, should this present problems in practice then jurisdiction should be spelt out explicitly in the legislation.
It seems that problems are being experienced in cases where an applicant leaves the jurisdiction where he or she obtained the interdict and is then advised that he or she must obtain a new interdict in the new area as the existing interdict does not apply. If this is the case then the legislation needs to be explicit in this regard.
It would appear that the various magistrates' offices have different attitudes to legal representation at the various stages of the interdict. It depends to a large extent on whether or not oral evidence is allowed by the various magistrates. There is a feeling that the Act should be more specific about legal representation and allow it at all stages of the process.
On the other hand, the Act was promulgated to provide speedy and inexpensive relief to a party. The moment legal representation is allowed it is more or less incumbent on the other party to obtain such representation which causes costs to escalate. Supporters of this latter idea feel that legal representation should be expressly excluded, except as regards review and appeal procedures.
The Act appears not to allow for oral evidence. No uniform approach is applied by the different courts. The poor quality of the original affidavit made by an applicant at the time of applying for an interdict frequently neccessitates oral evidence, particularly when an order is made for the eviction of the respondent from the matrimonial home.
On the other hand, it is argued that the hearing of oral evidence would again negate the spirit of the Act since it would only increase the workload of already overworked magistrates.
The general feeling of magistrates is that warrants should be issued only where there has been personal service on the respondent and that the Act should be amended to make this clear.
However, there is also a feeling that personal service would defeat the main objective of the Act, namely to prevent violence.
The general feeling seems to be that provision should be made for service by the South African Police Service, which service is, at present, regarded as invalid.
The Act makes no provision for the automatic cancellation of interdicts after a certain period of time. The opinion was expressed that some sort of limit should be set on the duration of interdicts. Although this proposal is not without merit, it will, if implemented, cause a variety of administrative problems, for example giving notice to the applicant will be essential and in many cases the applicant will no longer be traceable on account of a change of address.
The question also arises whether the warrant for arrest would also lapse? A respondent who is arrested on a warrant issued in terms of an interdict that has lapsed would be in a position to sue for unlawful arrest.
Two problems were raised in relation to the SAPS'S role in the interdict process. First, it would appear that the police are refusing to accept criminal charges, particularly of assault, until an interdict has been granted. Second, persons are being released with a warning after arrest by the police despite the fact that the Act makes it clear that no person may be released unless a judge or magistrate orders his or her release [section 3(2)9(a)]. In addition, according to information at the Commission's disposal, the Police tend to regard family violence as a civil matter and are reluctant to intervene.
The Act currently makes no provision for appeal or review, nor for bail pending review. It is felt that the legislature should spell this out in the Act.
In a publication "Violence against Women in South Africa" the Human Rights Watch evaluated the Act under consideration and drew attention to the same shortcomings.
The Act was similarly reviewed at a Convention on Domestic Violence: heal the family held at UNISA on 22 September 1994, and the Convention came to the conclusion that changes to certain provisions of the Act are needed.
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URL: http://www.saflii.org/za/other/zalc/ip/2/2-CHAPTER-3.html