Constitutional Court strikes blow against spousal abuse

The Constitutional Court struck a blow against spousal abuse when it ruled on the constitutionality of the Domestic Violence Act, Act 118 of 1998, dismissing an application for leave to appeal by Ahmed Raffik Omar, whose claim that the Act infringed on his right to a fair trial had been rejected by the Natal Provincial Division of the High Court.

Constitutional Court strikes blow against spousal abuse

 

The

Constitutional Court
struck a blow against spousal abuse when it ruled on the constitutionality of the Domestic Violence Act, Act 118 of 1998, dismissing an application for leave to appeal by Ahmed Raffik Omar, whose claim that the Act infringed on his right to a fair trial had been rejected by the Natal Provincial Division of the High Court. The case stemmed from an abusive relationship between Omar and his wife, which resulted in several protection orders being issued against him. Omar’s challenge was against Section 8 of the Act, which provides that, under certain circumstances, a member of the SA Police Service could arrest Omar if the police officer had reasonable grounds to believe that his wife was in imminent danger (a suspended warrant of arrest). Omar contended this was unconstitutional, as it infringed on his right to a fair trial, which includes the right to be informed of the charge against him, the right to be presumed innocent, and the right to remain silent; as well as his right to freedom and security of the person.
Judgment (PDF file)
See also a report on the IoL site

The Act serves an important social and legal purpose in addressing the scourge of domestic violence and SA’s obligations under the Constitution and international law to combat domestic violence, wrote Van der Westhuizen J for a unanimous court. The judge noted the purpose of section 8 was to provide a mechanism to ensure compliance with protection orders and to protect complainants against further domestic violence. Section 8(1), which mandates that the court issuing a protection order authorise a warrant of arrest in the absence and without the knowledge of the respondent, did not violate the right of access to courts as guaranteed by section 34 of the Constitution, the judge wrote. An interim protection order has no force until the respondent has been served, and the respondent may contest the issue. It was not uncommon for the law to provide for interim relief to protect a party who felt threatened by the immediate conduct of another.
Summary of judgment

The ruling was welcomed by the Women’s Legal Centre, which represented the Commission for Gender Equality, as amicus curie, and argued that the provisions of the Act were necessary to fulfil the State’s duties to protect women and children pursuant to the Constitution and international law. In particular it was argued that a contextual approach to domestic violence in SA is crucial taking into account the gendered nature of domestic violence, tits prevalence in SA and the need for the State to provide effective remedies to women who are the victims of such violence.


Another comment came from the Legal Resources Centre, which represented the third respondent, Halima Joosab. It said judgments of this nature remind us that if our laws were resourced and implemented effectively to serve the purpose for which they were intended, 'vulnerable groups may not be forced to endure such displays of power and abuse'.