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CHAPTER 1

ORIGIN OF THE INVESTIGATION AND INTRODUCTION

1. REPRESENTATIONS

The Commission received a request for the inclusion in its programme of an investigation concerning the Prevention of Family Violence Act 133 of 1993 from Attorneys: Pincus Matz, Marquard and Hugo-Hamman. According to them the Act represents a radical and, in their view, an unjustified departure from the audi alteram partem principle. They are of the opinion that this principle is a fundamental principle of our law and one which cannot and should not be abandoned under any circumstances. At the most, particular circumstances may justify a temporary suspension of the principle. It is for this reason that the Supreme Court has traditionally insisted that applicants make out a proper case for urgency and explain to the Court why such order should be granted without any notice to the other side.

They argue that the Act is in need of urgent revision and suggest that magistrates should not grant such orders to applicants unless it is evident that it is justified in the circumstances. Where interdicts are granted ex parte, they should be interim interdicts as normally provided for. Where conflicts of fact arise, magistrates should be granted a discretion and should be encouraged to act as mediators.

2. INCLUSION OF INVESTIGATION IN THE COMMISSION’S PROGRAMME

At its meeting held in Pretoria on 23 and 24 February 1996 the Commission considered and approved the inclusion of an investigation relating to family violence in its programme. The Commission decided to compile this issue paper in order to facilitate a focussed debate .

It is contemplated that following this issue paper draft legislation will be prepared and published for general knowledge and comment.