Discussion on the role of the court in domestic violence - De Rebus (2023)

The capacity of the courts to resolve the problem of domestic violence remains limited. Domestic violence remains a widespread social problem that needs to be addressed by society, government, communities and individual citizens. By the time the court becomes involved, domestic violence has already occurred and courts often have to deal with complicated consequences. Therefore, the role of the court remains as it has always been – to apply the sentencing policy to clearly expose domestic violence and to deter the perpetrator and others from committing acts of domestic violence. Courts alone cannot solve domestic violence. In its report Crime against women in South Africa, Statistics South Africa (Stats SA) shows that femicide (the killing of women because of their gender) is five times the global average (www.statssa.gov.za, accessed October 5, 2020). This means that women in South Africa (SA) are five times more likely to be killed by men due to gender-based violence. However, the law must be careful to ensure that its content and procedures are well adapted to the needs of those suffering in homes affected by abuse. The community should seek to provide a network of support services for victims of domestic violence. The law cannot play its role meaningfully in isolation from the wider service community. A comprehensive approach is needed to combat what some call the genocide of women, particularly in South Africa.

One of the characteristics of domestic violence is its private nature. Family abuse takes place within the supposed sanctity of the home. There is no doubt that privacy in the home is a value to be preserved and promoted, but privacy cannot trump the security of all family members. If society is to provide an effective means of dealing with domestic violence, it must have some form of crisis response. South Africa's response to date has failed with victims of domestic violence as domestic violence is not a private matter. Viewing it as a mere private matter would serve not only to perpetuate it, but also to remove victims from the court's protection. Domestic violence is not a private matter and spouses have the same right to protection from violence as strangers. Society has a deep interest in this type of behavior. It is not a private matter between the parties to the relationship, nor will the matter go away when there is forgiveness within the relationship. Such behavior endangers and endangers society. The guardians of social interests, those working in social service, educators, priests and police who are called upon to these situations must have the protection of the law and the understanding that these offenses will not be ignored by society or by those who seek spousal forgiveness does not put an end to the crime.

Early observation of violence between people a child loves plants the seeds of acceptance of violence that often appears years later in his own life. A child is harmed when an adult he or she loves and depends on is the victim of emotional, financial, physical or sexual domestic violence. At the very least, the child's security and stability will be undermined. A child whose parent or caregiver is involved in domestic violence lacks adequate adult role models and therefore opportunities to learn about healthy intimate relationships and problem-solving skills. Abuse and violence in the home create stressful living conditions. Excessive stress at home is known to lead to trauma and possible developmental disabilities. Abuse and violence need not be directed at the child to cause emotional and/or psychological harm to the child.

Not every child who experiences domestic violence is permanently harmed (much depends on the frequency, duration, severity and access to safety, stability and resources, and the stability of the child's attachments to caring, non-abusive adults). . Some short-term and long-term childhood illnesses that have been exposed (directly or indirectly) to domestic violence include increased rates of -

• aggression and violence; AND
• Involvement in criminal and deviant activities.

Involvement in domestic violence has been linked to harmful parenting practices. These practices often reflect patterns of behavior associated with the coercive and controlling elements of domestic violence. Involvement in domestic violence is also associated with direct forms of child abuse. The risk of child physical abuse increases with the frequency and severity of domestic violence. A child exposed to domestic violence is more likely than other children to be exposed to various stress-inducing adversities, such as direct child abuse and other forms of violence.

In the 18th century, a judge named Francis Buller said that a man had the right to beat his wife with a stick "no thicker than his thumb" (Jennifer Freyd and JQ Johnson "Commentary: Domestic Violence, Folk Etymologies, &" Rule of Thumb "'(https://dynamic.uoregon.edu, accessed September 20, 2020)). Laws do not arise in a social vacuum. The idea that a man has the right to "discipline" his wife is deeply rooted in the history of our society. The wife's duty was to serve her husband and remain married at all costs "till death do us part", accepting as due any "punishment" inflicted to her husband's displeasure. These ideas are rooted in human sinful nature, which turns male leadership into dominance and female submission into manipulation. Genesis 2:18 (NIV) declares, “It is not good for the man to be alone. I will make him a suitable helper.” Eve was made from Adam's rib. Eve was not made from Adam's head to rule over him, or from his feet to be trampled underfoot. She was made beside him to be his equal, under his arms to be protected and close to his heart to be loved (www.biblestudytools.com, accessed September 20, 2020).

In the opening paragraph, I discussed the limited role a court plays in dealing with domestic violence. Courts and police enter the ring in the last round of the match, so to speak. Unfortunately, in many cases it's too late, as many victims of bullies attest. The nature of domestic violence makes it difficult for victims to speak up and seek help. Victims who speak out about abuse still face the prospect of being judged by the popular mythology of domestic violence. Either she has not been (I am referring to women as they are mostly the victims) "beaten up as much as she claims, or she would have left the man a long time ago". Or, if she was so badly hit, "she must have gotten out of masochistic indulgence." We should never compare animals to humans, but in laboratories, if you hatch an animal, after a while it becomes indifferent to a threat to its life. It becomes defenseless and finds itself in a demoralized state where the animal feels that it has no strength or energy to do anything. So, in a way, this also happens in humans. It's almost like a concentration camp, if you will. You are paralyzed with fear. An abuser with highly disturbed or damaged self-esteem tends to balance his actions by lowering the victim's self-esteem in several ways.

Domestic abuse that goes unnoticed for too long stems from the abuser's ability to have both a public face and a private face. The offender's public face shows acceptable standards of behavior in line with society's morals and standards. The perpetrator's private face is invisible to most. An example of this is the shock and surprise that community members express when it becomes public that the abuser has abused their partner. Guilt, low self-esteem, and shame make it difficult for abusers to come out and seek help. Their difficulty is compounded by the lack of appropriate platforms, programs and facilities for guidance and support. In SA, we have alcoholism and substance abuse groups. We have rehab programs and laws to help with alcoholism and substance abuse. I am not aware of any national domestic violence program that has far more devastating and tragic consequences for our society.

The paragraphs above make it clear that domestic violence is not a private matter, as it affects society at large. Combating domestic violence requires a multifaceted approach. Our approach should be that you catch more flies with honey than with vinegar. I say this because, within the meaning of Section 5 of the Domestic Violence Act 116 of 1998, the court may consider a Section 4(7) application submitted to it and, to that end, may consider such additional evidence as it deems appropriate, including oral evidence or sworn evidence that forms part of the case file. In most cases, too little is too late. A collective approach from the wider community could have addressed the abuses, which in most cases occurred over a long period of time. As the saying goes, prevention is better than cure. I think an approach that focuses your attention in the following way could be more sustainable and effective:

• Risk-oriented (focus on reducing or preventing risks and their impact): Religious leaders in each local community should take a more active role in identifying potential abusive relationships in their communities. Logic and common sense dictate, in most cases, that a person will more easily communicate with a familiar person (your local priest) than with a stranger like a judge. The range of help and resources available to religious leaders is greater than that of judges. I say this because the sooner you intervene, the greater the chances of rehabilitation. At the risk of being prescriptive, I venture to suggest teachings on love, the relationship between partners as I mentioned earlier can be helpful. Encourage the creation of an environment in which groups of men and women communicate, first individually and then collectively, about families and the role each member should play. It creates an environment where it's much easier to communicate. I am aware that SA is in the midst of the COVID-19 pandemic, but technology through various instant messaging platforms such as WhatsApp could be a viable option. The creation of these platforms offers religious leaders the opportunity to identify couples who may be at risk. It gives the religious leader an opportunity to intervene early and resolve the issue.
• Resource-oriented (adding resources to balance the risk): If the first phase does not bring the necessary support, the Ministry of Social Development and similar organizations are available. In extreme cases, particularly violence, law enforcement agencies must be notified. Social workers or family counselors can provide professional help and institute programs to address and resolve the conflict at a secondary stage.
• Process Oriented: This is the tertiary ground in which courts, when evaluating claims under Section 5 of the Domestic Violence Act, have all the information available from various sources (e.g., primary and secondary focus groups) to take a informed decision to be able to The court will have to provide one of three decisions due to large motions and pressure to complete these motions -

– issue a provisional protection order against the defendant;

- ask the defendant to justify the reason why the protection order should not be issued by the return date indicated in the notification; or

- reject the request.

I am aware that some law enforcement officials will postpone the request for arbitration, which will result in the withdrawal of the request or one of the orders under Section 5 Domestic Violence. Innovation and unconventional thinking is needed (especially in cases where the requirements of Section 5(2) of the Domestic Violence Act are not proven. The "winner takes all" approach has not worked in the past, present or for the foreseeable future "Such an action will result in future imprisonment, which will have devastating consequences. We must remember that seeking help in the courts is the last resort for the victim. Unfortunately, most victims do not have a platform to start on the first Report of abuse Most victims is already distressed and fears for their lives when they go to court Courts should have the power to order victims and perpetrators to attend primary or secondary therapy before complying with these orders, in accordance with § 6 of the Domestic Violence Act I procedure with exercise caution and do not advocate a general preference to marry Court officials and legal representatives need to be sensitive in family matters. It is important to remember that many lives are at stake when dealing with these apps. Immediate family members, neighbors, friends, co-workers and employers are directly and indirectly affected by the decisions taken. I deliberately do not refer to the role of children at the tertiary level because, for many reasons, children should not be involved at this stage of the process if possible. If the court grants the claim under Sections 5 and 6 of the Domestic Violence Act, they have little leeway to initiate criminal proceedings under Section 17 of the Domestic Violence Act.

Finally, let's give families the chance to be family in the truest sense of the word. In dealing with domestic violence, let's create an environment that gives families the best opportunity to recover and heal before it self-destructs. As former President Nelson Mandela said: "No problem is so deep that it cannot be overcome if all parties have the will and through discussion and negotiation rather than coercion and violence" (www.sahistory.org.za, accessed October 5, 2020). Former President Mandela also said: “People react according to your relationship with them. If you hit them on the basis of violence, this is how they will react. But if you say we want peace, we want stability, then we can do a lot of things that will help our society to progress.www.readersdigest.co.uk, accessed October 5, 2020).

Desmond FranckeBiuris (UWC)is a judge at Ladysmith.

This article first appeared inPor Rebusin 2020 (November)RD12.