By Sanette Viljoen of SV Legal
It is important to understand exactly what actions constitute domestic violence. It is also important to note that both men and women can commit domestic violence and that both men and women can be victims of domestic violence. Thus, either a man or a woman can obtain a domestic violence interdict against the other party.
Domestic violence is considered, among other things, as physical, sexual, emotional, verbal and economic abuse. The violence referred to in the definition of “domestic violence” is therefore not just the physical assault of which everyone is always aware.
Furthermore, domestic violence also includes intimidation, harassment, stalking, damage to property, as well as any predominant conduct or conduct of abuse where such conduct harms or threatens to harm the other party. The Domestic Violence Act is therefore very broad.
The principle that someone can be held liable for the behaviour that can cause another harm was recently discussed again in the case of KV v WV 2020 (1) SACR 89 (KZP). This case was appealed to the KwaZulu-Natal Supreme Court. The case concerned the confirmation or rejection of an interim protection order.
In the abovementioned case, the married couple had a very unstable relationship. After the wife took funds from her husband’s account, he confronted her. The woman scattered the man’s belongings across the house’s floor, which lead to physical and verbal abuse. On these grounds, the mother obtained an interim protection order from the Magistrate’s Court.
The man argued that he merely acted in self-defence and that his actions were therefore not unlawful. The man was of the opinion that the family relationship where the violence took place took away his right to self-defence and that the absence of wrongfulness also constitutes and absence of criminalisation.
Although the law does not impose wrongfulness as a specific requirement for domestic violence, the man was of the opinion that this requirement should be considered by the court. That some force was used to stop her from scattering his belongings, cannot necessarily be interpreted as meaning that there was domestic violence.
However, the Natal Supreme Court specifically examined the wording of the Domestic Violence Act (No. 116 of 1998) and noted, in particular, the preamble of this Act, in which it is clear that the purpose of the legislature is to reduce domestic violence on another basis as the normal criminal / delictual legislation.
Legality or wrongfulness is therefore not a requirement and it is clear that the law specifically left the requirement of wrongfulness out of the definition of domestic violence, by referring only to conduct that harms or threatens to harm the other party’s safety, health or well-being.
This omission was done deliberately in order to comply with the specific intention, the Constitution and then also with the protective rights of equality, freedom and security of a person.