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Why the Domestic Violence Act is the worst piece of legislation in South Africa
Cape Town – 29 August 2016
Domestic violence is a serious and wide spread crime in South Africa,affecting both black and white,and rich and poor.The way in which the legislation that seeks to prevent and control domestic violence is administered,has resulted in not only abuse of the courts but also in contravening the very spirit in which that legislation was enacted.
The Domestic Violence Act replaced previous legislation that governed domestic and spousal abuse and contains provisions that have both civil and criminal implications.The act was intended to provide an all in one solution for the alleviation of domestic violence.
In reality though the Domestic Violence Act has become a tool of manipulation,especially during divorce proceedings,as well as custody disputes between warring partners.Both men and women have started using the act intended for preventing partner abuse as a lever to settle legal and emotional scores with their former or current spouses or even romantic partners.
The act allows a court to issue a temporary protection order based on nothing but a sworn affidavit,that could restrict in many cases,a father from seeing his child.All an applicant (the person applying for a protection order),needs to do is submit an affidavit to the court,alleging acts of abuse have taken place,and the court will issue an interim order, prohibiting certain actions by the respondent (the person against whom an order is issued).The applicant does not need to provide any sort of proof,as this is only a temporary order.The order is only finalised on the return that is indicated on the summons.
Up until the order is finalised,a vindictive applicant can use the order to unfairly deny the other parent access to the children or even have them evicted from the shared home.If the respondent wants they can ask the court to hear the matter on an earlier date.Even while the interim order is in place,the applicant can have the respondent arrested by simply going to a police station and alleging that the other party contravened the order.Police officials can then arrest the respondent,as a result of the order allegedly being breached.
While the protection of abused women and children is of the utmost importance,the act needs to be redressed in order to address the loopholes which allows for it to be used to victimise parties who have not committed any offence.Such an important piece of legislation cannot be used to settle emotional scores of jilted partners.
By Wesley Fester
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