In 1998, the Domestic Violence Act (DVA) was enacted to afford victims of domestic violence the maximum protection from domestic abuse that the law can provide. The DVA enables victims of domestic abuse to apply for a protection order against an abuser. While the Act is an impressive piece of legislation, public hearings on the Act in 2009 raised a number of concerns by civil society on the Act’s implementation. While government departments have reported to parliament on progress made in the implementation of the Act since the hearings, has this progress translated into improved service delivery to victims of domestic violence?
In September 2013, the Tshwaranang Legal Advocacy Centre to end violence against women (TLAC) and the Heinrich Böll Foundation (HBF) launched the third and final report of a series of shadow reports that the organisations have undertaken in their 'Strengthening the State’s Response to Gender Based Violence Project', a project that is funded by the European Union. The shadow report aimed to assesses whether problems with the implementation of the Act are still being faced by interviewing applicants (123 women and 28 men) on their experience of applying for protection orders at nine magistrate courts in Johannesburg and Ekurhuleni (formally known as the East Rand) and from seeking assistance from the police on domestic violence matters.
Interviews with applicants revealed that the majority were seeking reprieve from verbal (85 percent) and physical (72 percent) abuse. In 40 percent of cases, applicants had also requested that the perpetrator vacate the home. While 98 percent of applicants were successful in being granted an interim protection order, the process of applying for the order was challenging for most. The following lists some of these challenges and key findings of the study:
- Clerks did not always assist applicants in completing application forms and at times applicants asked security guards for help with filling in the forms. Security guards are not trained nor are they required to do so;
- The application form is only available in English which further complicated the application process as most applicants (84 percent) did not speak English as a first language;
- Applying for protection orders was time-consuming - only 23 percent of applicants spent less than an hour in court, the remainder waited between two to six hours or more. At one of the courts the delays were so significant that some people left the court before they were even seen to;
- Applicants were also not always guaranteed to receive support on the same day. This was often dependent on the availability of magistrates however at one of the courts clerks had also refused to assist applicants beyond a particular time (even though the DVA enables an applicant to apply for a protection order at any time during court operating hours - and in dire circumstances, after hours too);
- Waiting periods between applying for an interim protection order and returning to court for the final protection order hearing varied across the courts - some from as little as two weeks while at other courts the wait for the final protection order hearing could take up to six weeks or longer;
- For those employed (56 percent of the sample) taking time off from work to go to court was challenging and held financial implications. This was further exacerbated by delays and needing to return to court multiple times. Time-delays also held significant implications for those needing protection from abuse;
- Court clerks did not always fulfill their duties as prescribed by the DVA inclusive of not always providing applicants with sufficient information on what to do or what to expect following the court’s granting of the interim protection order. For example, at two courts, not all applicants were instructed to take the interim protection orders granted to the police for serving on the respondent nor did these applicants receive any other information on how the respondent would be informed of the order applied for;
- Unsuccessful applicants were not always provided with reasons for not being granted a protection order;
- Negative attitudes and lack of sensitivity to their needs was raised by applicants as concerns in their interactions with the police and at three of the courts;
- Applicants complained of being yelled at, of court clerks having 'attitude' and being rude. Court monitors also noted that at one of the courts, clerks were impatient with applicants and raised their voices or spoke harshly to them;
- Police were the major source of referral to protection orders but failed to provide information on other available remedies to victims of domestic abuse. The level of service received from the police most often described by applicants was average (57 percent) followed by good (19 percent). While some applicants were happy with the manner in which police responded, several complaints leveled at the police included delays in attending to call outs, attempts at mediating cases instead of arresting the perpetrator and complaints of not being taken seriously by the police.
In conclusion the report finds that victims of domestic abuse accessing court and police services are still facing challenges similar to those raised at the public hearings, and while the Department of Constitutional Development and the Ministry of Police report on progress made in implementing strategies to address the recommendations, the report finds that significant room for the improvement of services continues to exist. Domestic violence is complex, and not merely a criminal justice matter. Improvement in the criminal justice response would afford victims a measure of increased safety and protection, and reduce their sense of isolation and helplessness. It would also promote greater faith in the ability of government efforts to reduce gender based violence.
For a copy of the shadow report, contact Claudia Lopes from the Heinrich Boell Foundation, E-mail: firstname.lastname@example.org, Tel: 021 461 6266.