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Family Violence
Seeking protection from violent or malicious family members
Family Violence
Seeking protection from violent or malicious family members
Source: Reader’s Digest’s You and Your Rights
Assault by one member of a family - usually a dominant member of the household - on others has become one of the fastest growing crimes in this country. South African law recognises three types of assault.
Case History - Can a man be convicted of raping his wife
Many people accepted in the past that in South African law a man could not be found guilty of raping his wife.
This was an assumption based on readings of Roman-Dutch law and British precedents and was accepted by attorneys-general who declined to act on complaints of rape brought by wives against their husbands.
In fact, for many years there was doubt about the accepted legal position both in
It was only in 1991 that a South African judge ruled that there was no justification for marital exemption from the crime of rape. However, that decision was overturned on appeal.
In a case before the Ciskei Supreme Court in August-November 1991 a man was charged with raping his wife after they had become estranged and were living separately. Counsel for the accused objected to the charge on the grounds that in terms of South African law a husband could not be convicted of rape of his wife. This was contested by the State.
In his judgment Mr Justice Heath described precedents in
Mr Justice Heath said that in
"In my view it is overwhelmingly likely that South African society is against such an old-fashioned principle and that society will regard it as obsolete insofar as it might have existed," the judge said.
However, the accused husband's appeal against his conviction was upheld by the Ciskei Appellate Division.
The three appeal judges (Diemont, Galgut and Rabie) found that under Roman-Dutch law still applying in
The question has now been finally settled by the Prevention of Family Violence Act, 1993, which makes rape by a husband of his wife a crime, notwithstanding anything to the contrary contained in the law or in the common law.
(State v Ncanywa 1991-93)
COMMON ASSAULT This type of assault is generally defined by South African courts as the unlawful and intentional application of force to another person or the threat of force, causing the person threatened to fear that force is about to be applied immediately to him or her. Usually the application of force is of a direct nature - a slap, a punch or a kick.
When, for instance, someone sets a dog on another person, the force is indirectly applied but still constitutes assault. In the case of threatened assaults the victim need not suffer real fear; however, although he or she need only believe that physical aggression is imminent, it must be a belief that force will be applied immediately and not at some time in the future.
The fear of an attack may be inspired by words, gestures or acts, or may even be conditional. The victim's belief in an impending attack does not have to be reasonable, but if it is an eccentric and subjective fear, the court may be reluctant to find that assault was intended.
ASSAULT WITH INTENT This includes assault with intent to murder, rob, rape, commit sodomy or do grievous bodily harm. 'Grievous bodily harm' has been held by South African courts to mean more than the infliction of casual and comparatively insignificant and superficial injuries on the victim, but rather the intent to injure in a serious respect. It is commonly, but not always, inflicted with a weapon of some sort such as a gun, knife, stick, broken bottle or even a booted foot. It is not necessary for the complainant to show that actual grievous bodily harm has been caused; it is enough to show that there was an intention to cause it.
INDECENT ASSAULT For an assault to be indecent, the courts have ruled that there must have been some indecent handling of the complainant who is usually, but not always, a female; for example, touching the complainant's private parts, lifting up her dress, putting a hand up her dress, or caressing her breasts. No actual violence (in the strict sense) need be used nor physical harm caused; a mere touching of the complainant may suffice to obtain a conviction. This may give rise to difficulty in obtaining a conviction when the wrongdoer is the spouse of the victim.
Marital rape
Section 5 of the Prevention of Family Violence Act, 1993, states that a husband may be convicted of the rape of his wife, notwithstanding anything to the contrary contained in the law or in the common law. The Act further provides for the granting of an interdict with regard to family violence. Parties do not have to be married for this to apply - any reference in the Act to 'parties to a marriage' is construed to include a man or a woman who are or were married to each other according to law or custom and also to a man and a woman who live together as husband and wife although they are not married.
Protection for abused partners
A battered partner, most often a woman, is one who is beaten and assaulted, or verbally or psychologically abused by a partner.
Statistics show that as many as one out of every six South African women is assaulted by her husband or another male partner, and that this violence occurs between couples of all ages, races and financial positions, both in and out of the home.
Violence against partners usually takes the form of either assault or marital rape.
Various legal remedies exist in both civil and criminal law to protect partners, usually women, against harassment in the course of a relationship. These include:
- The Prevention of Family Violence Act, 1993, which provides for the granting of an interdict in terms of which a person is ordered to refrain from performing a particular act. Issued by a Supreme Court judge or by a magistrate, an interdict is a remedy of an extraordinary nature allowed in cases where a person requires protection against unlawful interference or threats by another person. A wife seeking protection will have to make an application to court in order to obtain an interdict.
- A divorce instituted by an abused wife on the grounds of irretrievable breakdown of the marriage.
- Moving out of the common home. Although many wives are reluctant to leave home because they are afraid that they will not be able to support themselves, they have the right to buy household necessaries and to make the husband pay for them. This is an aspect of the husband's duty to support his wife as long as she needs the support and he is able to provide it. The duty of support continues for as long as the marriage relationship subsists, even if the household breaks up owing to the wife's fault. The husband's liability to pay for household necessaries for his wife exists whether the parties are married in or out of community of property. However, because the definition of household necessaries may be open to some dispute, legal advice should be sought before going ahead. There are places of safety for women who find themselves in danger of being assaulted by their male partners and feel they cannot remain in their homes. Contact your local nicro office for advice.
- A claim for damages. A wife may institute a civil claim for compensation instead of, or as well as, a criminal charge against her husband. Her claim may include medical expenses, loss of earnings, compensation for physical pain and suffering arising out of the assault and damages for the humiliation that she has suffered. Depending upon the amount being claimed, the action may be brought in any one of various courts. If the amount claimed is less than R100000, a magistrate's court may hear the case. If the amount claimed is over R100000, the Supreme Court will have to be approached. (See structure of the courts; injuries, suing for.)
- Laying a charge of assault. A woman who has been physically abused or raped may lay a charge of assault or rape at a police station. This charge may be brought even when the woman has been raped by her husband while the parties are still married to each other.
Battered children
Parents and guardians have a right to control and discipline their children, but the punishment must not be excessive, unreasonable or be actuated by an improper motive, for example, sadism. There are no precise rules as to what is permitted, but the law requires people in charge of children to act with care and restraint. This applies to teachers, child-minders, baby- sitters and foster parents, as well as to parents and guardians.
Punishment that inflicts serious injury upon a child is illegal - and the parent can be fined or sent to prison for causing a child bodily harm.
Unnatural punishment which may cause a child physical or mental harm (such as locking a child up for hours without food) is also an offence.
Cases such as these are usually discovered by a neighbour who may reasonably suspect assault or cruelty. In such instances, any suspicions should be reported to the nearest police station. This confidential approach avoids embarrassment. In terms of the Child Care Act, 1983, any dentist, medical practitioner or nurse who suspects that a child has been ill-treated must report the matter immediately to the relevant authority - in terms of the Child Care Amendment Act, 1991, the Director of Health Services.
A child who has been ill-treated in any of these ways, or a child who is completely beyond the control of normal parental discipline, can be brought before a children's court, taken away from the parents and put in the care and control of the authorities.
Battered parents
Victims of family violence are not just women and children; parents are sometimes the victims of abuse at the hands of their own children. There is no specific legislation in place to deal with situations like these, but parents have the same recourse to the law that applies in other circumstances. A parent can, for instance, lay charges of assault, institute a claim for damages or obtain an interdict to prevent any further assaults. Although no large national support group exists for battered parents, Life Line is an organisation that is able to offer advice to parents and, if necessary, suggest other organisations that may be of assistance.
