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Citation:
Penelope Andrews, The Constitutional Court Provides
Succour for Victims of Domestic Violence – S v Baloyi,
16 S. Afr. J. on Hum. Rts. 337 (2000)

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(2000) 16 SAJHR
rupture an already unstable organisation. This is especially so in light of
the important role that the SANDF is likely to play in our fledgling
democracy. Not only is the SANDF responsible for national security, but
the order and discipline of the Defence Force may also be relied upon to
promote the socio-economic needs of the population.51 In addition to this
the SANDF has important obligations internationally and regionally.52
Whether or not the granting of trade union and protest action rights to
the SANDF will pose a threat to the security of the state will ultimately
depend on the support such action and organisation gets from members
of the SANDF.53 The question we need to be asking ourselves, however,
is whether this is a risk worth taking.
MOHAMED ALLI CHICKTAY
Lecturer in Law, University of the Witwatersrand
THE CONSTITUTIONAL COURT PROVIDES SUCCOUR FOR VICTIMS
OF DOMESTIC VIOLENCE
S v BALOYI
I INTRODUCTION
In S v Baloyil the Constitutional Court had occasion to consider the
constitutionality of s 3(5) of the Prevention of Family Violence Act 133
of 1993 (the Act). The subsection had been declared invalid by the
Transvaal High Court which had referred its finding to the Constitutional
51 J Cock ; P Mackenzie From Defence to Development: Redirecting Military Resources in SouthAfrica (1998) 19. According to the authors, the SANDF has resources, equipment, skills andinfrastructure that could be used for reconstruction and development. They indicate that theSouth African navy facilities could be used for training in diving, signals, catering andcomputers. The SANDF could also be involved in adult education and literacy, in providinghealth facilities through the South African Medical Services, and in loaning earth-moving andother construction equipment.52 Gutteridge (note 49 above) 157. The SANDF is to play a key role in a number of ways, egmaintaining regional security, training missions, joint peacekeeping operations, and providinginternational and regional disaster relief. South Africa, with one of the more powerful armies inAfrica, has a potentially important role to play in the Organisation of African Unity.53 It is uncertain whether members of the SANDF support trade union and protest action rightsbeing given to them. In letters to the editor of the Defence Force journal ((1999) October Salut9), there were opposing views on whether members should be given these rights. One memberrejected these rights, arguing that: ‘sou unies in die SANW toegelaat word, al is dit net as ‘nmedium om sekere aangeleenthede te hanteer, sou dit katastrofiese gevolge vir die SANWinhou’ there would be catastrophic consequences for the SANDF if trade unions wereallowed, even if just as a mechanism to deal with certain issues. On the other hand, othermembers accepted these rights, arguing that ‘if you allow soldiers to join a union you make thesystem more democratic and you reduce exploitation’.
1 2000 (1) BCLR 86 (CC) (Baloyi).

FOCUS: THE CONSTITUTIONAL COURT’S 1999 TERM
Court for confirmation.2 The High Court’s declaration of invalidity was
based on three findings: that the subsection under review ‘places a reverse
onus of proving absence of guilt on a person charged with breach of a
family violence interdict’,3 conflicting with the constitutionally protected
presumption of innocence, without compelling constitutional justifica-
tion. The case presented the opportunity for the Constitutional Court to
confront the vexed issue of domestic violence, and to balance the need
to eradicate domestic violence with the constitutional rights of accused
persons to a fair trial.
Section 3(5) of the Act reads as follows:
The provisions of the Criminal Procedure Act … 51 of 1977, relating to the procedurewhich shall be followed in respect of an enquiry referred to in s 170 of that Act, shallapply mutatis mutandis in respect of an enquiry under subsection 4.
Section 170 of the Criminal Procedure Act reads:
(1) An accused at criminal proceedings who is not in custody and who has not beenreleased on bail, and who fails to appear at the place and on the date and at the time towhich such proceedings may be adjourned or who fails to remain in attendance at suchproceedings as so adjourned, shall be guilty of an offence and liable to the punishment
prescribed under subsection (2).(2) The court may, if satisfied that an accused referred to in subsection (1) has failed toappear at the place and on the date and at the time to which the proceedings in questionwere adjourned or has failed to remain in attendance at such proceedings as so
adjourned, issue a warrant for his arrest and, when he is brought before the court, in asummary manner enquire into his failure so to appear or so to remain in a attendanceand, unless the accused satisfies the court that his failure was not due to fault on his part,convict him of the offence referred to in subsection (1) and sentence him to a fine notexceeding R300 or to imprisonment for a period not exceeding three months.4
Section 3(5) becomes operative after an interdict has been obtained against
a person (almost always a male) in terms of the Act, the interdict has been
violated and the violator arrested. Section 3(2) of the Act provides for the
alleged violator to be brought before a judge or magistrate as soon as
possible. Section 3(4) allows the judge or magistrate, after an enquiry into
the alleged violation, either to order the release of the respondent from
custody or to convict the respondent as outlined in s 6.
2 Although the Prevention of Family Violence Act had been replaced by the Domestic ViolenceAct 116 of 1998, the Constitutional Court believed it appropriate to deal with the sections underreview, since the appellant and others similarly situated would be affected by them.3 Baloyi para 1.4 Emphasis added. Whether a reverse onus was placed on the appellant was the essence of theenquiry in Baloyi.5 Section 6 provides as follows:
A person who -(a) contravenes an interdict or other order granted by a judge or magistrate under section2(1) or (2); or(b) fails to comply with the provisions of section 4, shall be guilty of an offence and liableon conviction in the case of an offence referred to in paragraph (a) to a fine or imprison-ment for a period not exceeding 12 months or to both such fine and such imprisonmentand in the case of an offence referred to in paragraph (b) to a fine or imprisonment fora period not exceeding three months or to both such fine and such imprisonment.

(2000) 16 SAJHR
The Minister of Justice and the Commission for Gender Equality
intervened in the action challenging the High Court’s decision on three
grounds. The first was that the ‘alleged violators should not be considered”accused persons” entitled to the presumption of innocence’.6 Second,
even if they are to be treated as such, the sections of the Criminal
Procedure Act under review should not be interpreted as imposing a
reverse onus. Their third contention was that if the proper interpre-
tation of those sections involved the imposition of a reverse onus, ‘then
the limitation of the presumption of innocence involved could be
justified’.7
II FACTS
The complainant, the wife of an army officer, had been granted an
interdict against her husband by a magistrate in Pretoria. The appellant
was ordered not to assault the complainant and their child, and not to
prevent them from entering or leaving the marital home. The appellant
ignored the interdict and subsequently assaulted and threatened to kill
the complainant. She complained to the police and, after she signed an
affidavit, the police arrested the appellant and brought him before a
magistrate to enquire into the alleged breach of the interdict.
III THE ISSUE OF DOMESTIC VIOLENCE
The Court commenced its discussion by addressing the Constitution’s
requirement that the problem of domestic violence be effectively dealt
with. Sachs J embarked on a thoughtful analysis of the need to deal com-
prehensively and effectively with the problem of domestic violence. Sachs J
described the unique ‘hidden and repetitive character’8 of domestic
violence, its ubiquity in cutting across class, race, cultural and geographical
boundaries and the deleterious consequences for society of its persistence.
Moreover, because domestic violence is so gender specific, it mirrors and
mimics patriarchal domination in a particularly abhorrent manner.9
With intellectual precision Sachs J excavated the banality and
perceived inevitability of domestic violence, and the imperatives on the
government to stem it. He adroitly contextualised the problem as
embedded in partriarchy and the continued subordination of women. In
their research, women’s organisations have uncovered the high levels of
6 Baloyi para 10.7 Ibid.8 Ibid para 11. It has been estimated that one in every four adult women is regularly assaulted byher partner. Jeni Irish ‘Women and Political Violence’ (1993) 16 Agenda 7.9 Ibid para 12. Sachs J’s identification of the intransigence of patriarchy in South Africa is notnew. Before he was appointed to the Constitutional Court, he wrote a frequently quoted articleon the pervasiveness of patriarchy, which he termed the only ‘truly non-racial institution inSouth Africa’. See Albie Sachs ‘Judges and Gender: The Constitutional Rights of Women in aPost-Apartheid South Africa’ (1990) 7 Agenda 1.

FOCUS: THE CONSTITUTIONAL COURT’S 1999 TERM
domestic abuse across all sectors of South African society.’° These
disturbing numbers confirm the Court’s assessment of the certain normalcy
or banality of domestic violence.” This analysis is purposely victim-
centered, that is, Sachs J detailed the effects of domestic violence on the
victims. Moreover, he outlined how the collusion of the state in not rooting
out domestic violence undermines its promise of gender equality and non-
discrimination so clearly articulated in the Constitution. 12 Such inaction on
the part of the government also contradicts South Africa’s international
and regional obligations; for example, those under the General Assembly
Declaration on the Elimination of Violence Against Women,13 the
Convention on the Elimination of All Forms of Discrimination against
Women14 and the African Charter on Human and People’s Rights.’5
Dealing with the constitutional presumption of innocence,16 Sachs J
cited a list of Constitutional Court decisions that have reiterated this
right.’7 He then elaborated on the hybrid (public/private) nature of the
Act and analysed the complications that surface when the private (family)
domain intersects with the public through the interdict provisions. The
interdict proceedings in the Act are situated somewhere between family
and criminal law remedies, their purpose being to supplement and
enforce those remedies.
Citing feminist scholarship on this issue, Sachs J stressed the unique
character of domestic violence as a legal problem, because of the ‘strange
alchemy of violence within intimacy’.’8 Innovative legal skills and
methods are therefore essential in combating the problem; and to some
10 For example, a survey conducted by the Human Sciences Research Council found that 43 percent of women in their survey sample in a Cape Town community had experienced maritalrape and assault. ‘43% of Women Claimed Marital Rape, Assault’ The Citizen 18 August1994, cited in Human Rights Watch/Africa Violence Against Women in South Africa (1995) 45.11 Human Rights Watch/Africa (note 10 above) 46-7 reported the following findings in theirsurveys: ‘A man is seen as necessary, especially in the rural areas, to have any hope of economicsecurity, and a degree of violence in a male-female relationship is frequently accepted as normaland inevitable’. See also Catherine Campbell ‘Learning to Kill? Masculinity, the Family andViolence in Natal’ (1992) 18 J of Southern African Studies 614. Campbell recounts (626) thefindings of a survey to probe violence in the family: ‘Violence was a common theme in the youngrespondents’ accounts of their sexual relationships. Several respondents referred to the use ofviolence in what they called the “common practice of forced sex” amongst young people.Violence also played an important role in the territorial control of women’.12 Of particular relevance to domestic violence is the right in s 12(1) of the 1996 Constitution:’Everyone has the right to freedom and security of the person, which includes the right -..(c) tobe free from all forms of violence from either public or private sources’. (Emphasis added)13 GA Res 104 of 1993.14 (1980) 19 ILM 33.15 (1982) 21 ILM 58. The Charter was signed by South Africa in 1995 and ratified in 1996.16 Section 35(3) of the 1996 Constitution provides: ‘Every accused person has the right to a fairtrial, which includes the right- …(h) to be presumed innocent, to remain silent, and not totestify during the proceedings.’17 The Court cites Osman v Attorney-General, Transvaal 1998 (4) SA 1224 (CC), Parbhoo v GetzNO 1997 (4) SA 1095 (CC), S v Coetzee 1997 (3) SA 527 (CC), S v Mbatha 1996 (2) SA 464(CC) and S v Bhulwana 1996 (1) SA 388 (CC).18 Baloyi para 16, citing Joanne Fedler ‘Lawyering Domestic Violence Through the Prevention ofFamily Violence Act 1993 -An Evaluation After a Year in Operation’ (1995) 12 SAJHR 231.

(2000) 16 SAJHR
extent the interdict provisions of the Act create the legal space for such a
possibility. These provisions require that police officers and other actors
in the legal system temporarily jettison attitudes (often negative) about
the appropriateness or otherwise of interfering in private family matters.
In a country where victims of domestic violence have largely experienced
the policy as indifferent to their predicament, these provisions are
imperative if the attitudinal shift in policing domestic violence is to occur.
The interdict provisions are intended as an ‘accessible, speedy, simple and
effective process’.’9 It is a proactive mechanism aimed at preventing
further violence without being punitive. In the words of Sachs J, ‘it seeks
preventive rather than retributive justice’.2
IV IS THE ALLEGED VIOLATOR AN ‘ACCUSED PERSON’?
Sachs J then went on to deal with the three grounds on which the Act was
challenged. The first was whether the alleged violator is ‘an accused
person’ and therefore entitled to the presumption of innocence. Counsel
had argued on the basis of Nel v Le Roux21 that the proceedings under
the Act were ‘essentially civil in character’ 22 and that the arrested person
was not an ‘accused person’ entitled to the right in s 35(3)(h). Nel had
dealt with the procedural consequences of the failure to testify when a
legal duty to do so has been established. Ackermann J had held that ‘the
recalcitrant examinee who, on refusing or failing to answer a question,
triggers the possible operation of the imprisonment provisions of s 189(1)
of the Criminal Procedure Act is not, in my view, an “accused person”‘ 23
Ackermann J described the imprisonment provisions of s 189 as ‘nothing
more than process in aid’.24
Sachs J however distinguished the Baloyi situation from that which
pertained in Nel v Le Roux by pointing out the punitive nature of s 6 of
the Prevention of Family Violence Act, which provides for the conviction
to a fine or imprisonment for breach of the interdict provisions. Whereas
the examinees in Nel carried ‘the keys of their prison in their own
pockets’,25 no such situation existed with violators of the interdict
provisions of the Act. Once the enquiry into the alleged violation of the
19 Baloyi para 17.20 Ibid.21 1996 (3) SA 562 (CC).22 Baloyi para 20.23 Nel (note 21 above) para 11.24 Ibid. Section 189 of the Criminal Procedure Act provides that: ‘If any person present atcriminal proceedings is required to give evidence at such proceedings and refuses to be swornor to make an affirmation as a witness, or, having been sworn or having made an affirmationas a witness, refuses to answer any question put to him or refuses or fails to produce any book,paper, document required to be produced by him, the court may in a summary manner enquireinto such refusal or failure and, unless the person so refusing or failing has a just excuses forhis refusal or failure, sentence him to imprisonment for a period not exceeding two years or,where the criminal proceedings in question relate to an offence referred to in Part III ofSchedule 2, to imprisonment for a period not exceeding five years.’25 Nel (note 14 above) para 11.

FOCUS: THE CONSTITUTIONAL COURT’S 1999 TERM
Act commences, the complainant essentially had abdicated control of the
proceedings to the state. In Sachs J’s summary:
the objective is not to coerce the will to desist from on-going defiance, but to punish thebody for completed violation; and the convicted person carried no keys in his pocket -indeed there is nothing in the Act to suggest that he can be released early if either thecomplainant so wishes, or the judicial officer so decides.26
The Court concluded that the alleged violator of the interdict is an,accused person’ and therefore entitled to the presumption of innocence.
The Court then went on to discuss whether s 3(5) imposes a reverse
onus. Commenting on the ‘obscure’27 nature of the words utilised in s 3 of
the Family Violence Act and s 170 of the Criminal Procedure Act, Sachs J
examined three possible interpretations of the sections under review. They
are summarised in the judgment as interpretations A, B and C.
Interpretation A, emphasising the word ‘procedure’, allows only the
importation of the summary procedure, and not a reverse onus. In other
words, the protections guaranteed in the Criminal Procedure Act are not
suspended; there is therefore no reverse onus interfering with the
presumption of innocence. As the Court pointed out, this interpretation
lends itself to the approach mandated in s 39(2) of the Constitution:
‘when interpreting any legislation.., every court. ..must promote the
spirit, purport and objects of the Bill of Rights.’
Interpretation B embodies the High Court position, namely that s 170
‘provides for a procedure which incorporates a reverse onus as a central
element’ 28
Interpretation C provides for a reverse onus, but only once the
‘accused person’ has proved lack of wilfulness on his part. As the Court
articulates this interpretation:
It presupposes that the judicial officer must first be satisfied beyond reasonable doubtthat the interdict has in fact been breached and that only then if the onus placed on the
alleged violator to prove on a balance of probabilities a lack of wilfulness on his part.There is a reverse onus, but its reach would be restricted because it would be triggeredonly after a breach of the interdict has been proved beyond a reasonable doubt.29
Finding that interpretation C was too ‘strained’,30 and not persuaded by
the High Court’s position (interpretation B), the Court adopted
interpretation A as stating the correct legal position. Distinguishing the
substantive law question (what must be proved) and the procedural law
question (how to prove it), Sachs J pointed out that s 170(2) of the
Criminal Procedure Act provides for conviction for failure to attend
court proceedings ‘unless the accused satisfies the court that his failure
was not due to fault on his part’.3t This shifting of the burden to the
26 Baloyi para 22 (citations omitted).27 Ibid para 24.28 Ibid para 27.29 Ibid para 28.30 Ibid.31 Ibid para 29.

(2000) 16 SAJHR
accused renders the issue one of substantive law, and therefore the
procedures of the Criminal Procedure Act are no longer apposite. In
short, the presumption of innocence is left undisturbed.
Sachs J referred to the need to provide the legislature with latitude in
dealing with intransigent social problems that find their way to the
courts. He does of course recognise that such latitude exists within
constitutionally appropriate limits; however, fairness to the complainant
is pre-eminent. This requires that the proceedings are ‘speedy and
dispense with the normal process of charge and plea’,32 something akin to
a bail hearing.
Although the case was not mentioned in the Constitutional Court’s
discussion, the question of the nature of the interdict proceedings under
the Act was dealt with by the Cape Provincial Division in 1997. In
Rutenberg v Magistrate, Wynberg33 the applicant applied for review and
setting aside of the magistrate’s decision on two bases. First, that the
magistrate had declined the applicant’s request to conduct the hearing (to
have the interdict and order for his arrest set aside) in chambers and not
in open court. The applicant had argued that the hearings were
administrative or quasi-administrative in nature. The second basis was
that the magistrate had erred in allowing oral evidence to resolve the
disputes of fact on the papers. The Court held that the review had to fail,
specifying that the nature of the hearing was judicial. Secondly, the
decision of the magistrate ‘to receive evidence viva voce and to try
the issue in dispute in a summary manner could not be faulted’.34 The
Court suggested that a certain degree of latitude was to be accorded to
judicial officers in dealing with the interdict provision in s 2(1) of the Act.
Similar sentiments were expressed by Sachs J in Baloyi.
V CONCLUSION
This judgment is another in a line of cases emanating from the
Constitutional Court which is carving out an impressive jurisprudence
with respect to women’s rights and equality.35 There is widespread
recognition that private violence against women is a cause for great
concern. Some would argue that it constitutes a continual violation of
women’s human rights. The Court places its imprimatur on the need to
eradicate such violence, without constraining the constitutional rights of
the perpetrators.
32 Ibid para 31.33 1997 (4) SA 735 (C).34 Ibid 755F.35 See, for example, President of the Republic of South Africa v Hugo 1997 (4) SA I (CC), wherethe court articulated a comprehensive definition of equality to incorporate not just formalequality, but also substantive equality. Similarly, other courts have contributed to this newdispensation of furthering women’s rights. See, for example, Christian Lawyers Association ofSA v Minister of Health 1998 (11) BCLR 1434 (T) where the High Court confirmed a woman’sright to make decisions about her reproductive capacity and the right to exercise control ofher body, as articulated in the Constitution.

FOCUS: THE CONSTITUTIONAL COURT’S 1999 TERM
The Court’s decision is incontrovertible: there is general societal
consensus that private violence, indeed any violence, against women is
odious and the state ought to deal with this problem aggressively.36
However, there is still a large gap between ,.ubiquitous cultural attitudes
about women, fuelled by a particular brand of South African
masculinity37 which gives rise to such violence, and the laudable
statements of the Court. Closing this gap will require a recognition that
the structural and attitudinal impediments .to the ‘right to be free from
private violence’ as articulated in the 1996 Constitution, can only be
eradicated by a combination of .governmental assaults which include
education, access to resources and continued vigilance about the extent
and persistence of violence. The Constitutional Court at least is doing its
part, but it needs to be -bolstered by other institutional arrangements,
which will include both legal and extra-legal measures.
PENELOPE ANDREWS
Professor of Law, City University of New York
MAKING THE BILL OF RIGHTS A REALITY FOR GAY AND
LESBIAN COUPLES
NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY V MINISTER
OF HOME AFFAIRS
I INTRODUCTION
According to Ackermann J, who delivered the judgment on behalf of a
unanimous Constitutional Court in this case,1 there were two questions
for decision:
1. Whether it is unconstitutional for immigration law to facilitate the
immigration into South Africa of the spouses of permanent South
36 The Domestic Violence Act 116 of 1998, which replaced the Family Violence Act reflects thegovernment’s commitment to eradicating domestic violence. For example, the new Act’sexpansive definition of ‘domestic violence’ to incorporate physical as well as emotional andeconomic abuse (and other forms of abuse) recognises the range of suffering perpetrated byabusive spouses. Similarly, the Act’s definition of ‘domestic relationship’ provides protectionfor spouses who may not be formally married, for example those married according tocustomary law, or same-sex couples, as well as for a host of family members beyond thespouse, for example, children. Section 2 of the Act imposes a duty on police officers to assistand inform complainants of their rights under the Act. Section 4 of the Act also provides fairlycomprehensive provisions to ensure that victims of domestic abuse are able to obtainprotection orders against abusive spouses, with the assistance of parties who may have aninterest in the complainant’s welfare. Section 5-8 allow for streamlined set of procedures tointerdict the abuser.37 Sachs (note 9 above).
I National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA I (CC)(National Coalition).

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