Mr Shaun Bergover, Attorney at Rhodes University Law Clinic
There are several laws which govern gender-based and domestic violence in South Africa. Our Constitution is the primary piece of legislation that offers rights and protection to vulnerable groups. This article will focus primarily on the relevant South African civil laws. Our June article will focus on relevant criminal laws.
One of the major changes to our law in relatively recent history is our Constitution and the rights that are contained in the Bill of Rights. The Constitution guarantees non-discrimination and equality regardless of race, gender, sexual preference and religion, amongst other things. This means that different types of families and marriages must be treated equally. For example, same-sex marriages (i.e. two men or two women), religious marriages and customary marriages are all recognized and protected by South African law.
Certain rights in the Constitution are applicable to domestic violence and the protection of women more generally. For example, a woman may be a victim of domestic violence, which could include physical assault, name-calling, defamation, financial and emotional abuse, and being forced to do certain things in the home even though she does not want to. All these abuses are covered in some way by the Constitution.
The Constitution also offers special protection to children in section 28. This includes the right of all children to be protected from maltreatment, neglect, abuse or degradation.
Unlike criminal matters, which are between the State and the Accused person, civil matters are between two individuals where one claims that the other has said or done something that caused them harm. The discussion of civil remedies below will not deal with the remedies in the Domestic Violence Act, which will be explained later in this series of articles. These civil remedies available to a victim include a claim for damages (harm of loss suffered), eviction and spoliation.
The victim may sue the abuser for any loss or damage he or she has suffered arising from the abuse. This is a long and complex process and is more difficult than the process in the Domestic Violence Act. Usually, the victim will seek financial compensation from the abuser and has to prove a number of things, including that the abuser caused the loss suffered, and the extent of the financial loss that they have suffered. Compensation can be sought for medical expenses, loss of earnings, pain and suffering, and any other loss caused by the abuser. The victim will likely need an attorney to assist with this type of claim, as supporting evidence in the form of medical and other expert reports, vouchers, and affidavits will be needed.
At the outset, it should be noted that no-one may be lawfully evicted from a property without a court order.
The Domestic Violence Act makes provision for an eviction order to be granted by the court, in certain extreme circumstances. This section briefly deals with eviction orders in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) which may be necessary if it is not possible to obtain an eviction order in terms of the Domestic Violence Act.
If you are being abused by someone living with you, but the abuser has no legal right to live there, an eviction order may be obtained against that person. If the client is living in a property that they are renting, they can seek assistance from the owner of the property or get authority from the owner to institute eviction proceedings. With the assistance of an attorney, the victim will have to sign an affidavit setting out their version of events and make a case for why they want the other person to be evicted from the property. If that person has a right to be there in terms of a valid lease agreement or arrangement, then you will be unlikely to succeed in getting an eviction order. It will also be very difficult to evict someone who is a co-owner of the property.
It should be noted that the process for obtaining an eviction order in terms of PIE is complex, lengthy and expensive, and so should not be initiated without careful consideration. So too, a claim for damages.
If someone is in peaceful and undisturbed possession of any item of property and that property is taken from them unlawfully (without their permission), the possessor (person who is in possession) of the property may approach the court to have the property returned to them. This is called spoliation. The court has to decide whether two factors exist before granting the order: firstly, whether the applicant (the person wanting the property back) was in peaceful and undisturbed possession of the property prior to it being removed and secondly, whether the person who took the property did so unlawfully and without the permission of the applicant. The person who took the property will not be acting unlawfully if they are acting in terms of a court order or if the applicant agreed, without being forced, that the other person could remove the property.
Interestingly, in granting a spoliation order, the court does not investigate who is the owner of the property. This remedy may be used in domestic violence cases to return items which may have been removed from the victim’s possession.