You are currently viewing A Step Towards Empowerment: The New Domestic Violence Bill and How It Is Combatting Sexual Harassment in South Africa.

A Step Towards Empowerment: The New Domestic Violence Bill and How It Is Combatting Sexual Harassment in South Africa.

In recent years, Domestic Violence in South Africa is perhaps the greatest social plague that, without a doubt, must be dealt with as it, unfortunately, has already gone too far.  As a country, we have been confronted with longstanding challenges relating to domestic violence and sexual harassment, which have had profound impacts on individuals and communities.

The Constitutional Court has addressed the topic of Domestic Violence on numerous occasions. In  S v Baloyi 86 2000 (1) BCLR 86 (CC), para 11, the court stated that:

“All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so frequently goes unpunished” 

The South African government has taken a significant stride towards improving the law and safeguarding the rights and dignity of vulnerable groups like women and children. The government has introduced the Domestic Violence Amendment Bill 14 of 2022 (“the New Act”), which is an amendment to the Domestic Violence Act 116 of 1998 (“the Old Act”). The Domestic Violence Amendment Bill 14 of 2022 came into effect on the 14th of April 2022

In this article, we will explore the key provisions of the New Act and the efforts to combat sexual harassment.

The most important amendments made

The New Act includes various new definitions such as coercive behaviour, close relationship, and controlling behaviour. The New Act also expands the existing definition of Domestic Violence to include for example spiritual abuse, coercive and controlling behaviour, and sexual harassment.

The New Act also amended provisions of the other Acts which include the Protection from Harassment Act 17 of 2011, Criminal Procedure Act 51 of 1977, Firearms Control Act 60 of 2000, and Superior Courts Act 10 of 2013.

A big amendment which was made is the fact that a victim of domestic violence can now apply for a protection order online without having to go to court. This will be discussed later in this article.

Expanded Definition of a Domestic Relationship

Not much has been amended in the definition of a Domestic Relationship, however, for the purpose of this article it is important to look at the expanded definition.

In terms of the New Act, a domestic relationship is a relationship between the complainant and the respondent in any of the following ways:

(a) they are or were married to one other;

(b) they have lived or are living together in a relationship in the nature of marriage, even though were never married to each other;

(c) they are the parents of a child or they have parental responsibilities towards a child (whether or not at the same time);

(d) they are family members that are related by consanguinity, affinity or adoption;

(e) they are or were engaged to each other, dating or in a customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

(f) they share or recently have shared the same residence, premises or property within the preceding year.

Expanded Definition of Domestic Violence

The New Act takes a comprehensive approach by expanding the definition of domestic violence to include various forms of abuse. This progressive approach reflects a deeper understanding of the multidimensional nature of abuse and its long-term effects on victims.

It is very assuring to mention an expansion of types of “domestic violence” that includes the abuse of an elder, or exposing a child to a violent domestic setting in any of the mentioned categories. Sexual Harassment is seen as a separate mentioned category that contains sub-categories.

Domestic violence is now defined to include:

(a) physical abuse;
(b) sexual abuse;
(c) emotional, verbal, or psychological abuse;
(d) economic abuse;
(e) intimidation;
(f) harassment;
(g) spiritual abuse (stalking);
(h) damage to property;
(hA) elder abuse;
(hB) coercive behaviour;
(hC) controlling behaviour;
(hD) exposing or subjecting a child to domestic violence as listed in (a) to (hC); (i) entry into the complainant’s or a related person’s—

– permanent or temporary residence without their consent (where the complainant and respondent do not share the same residence); or

– workplace or place of study, without their consent (where the complainant and respondent do not share the same workplace or place of study); or

– any other behaviour towards the complainant that is intimidating, abusive, degrading, threatening, humiliating or offensive where that behaviour harms, or may inspire the reasonable belief that harm may be caused to the safety, health or wellbeing of the complainant or any related person.

Sexual Abuse – Section 2(u)

It is important to mention that in terms of the Domestic Violence Act and other legislation, there is a difference between Sexual Abuse and Sexual Harassment. For that reason, we will give a brief explanation of Sexual Abuse.

The definition of Sexual Abuse has been replaced in the New Act to realign with the definition that is found in the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007

Sexual abuse is defined in the New Act as any conduct that abuses, degrades, humiliates, or otherwise violates the sexual integrity of the complainant or a related person, whether or not that conduct constitutes a sexual offence as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) or, if the complainant is a child, constitutes sexual abuse as contemplated in the Children’s Act, 2005.

Sexual Harassment – Section 2(v)

Sexual Harassment in South African law has mainly been used in the context of a workplace setting. However, the New Act now allows for Sexual Harassment to also be seen as a form of domestic violence, within the context of a domestic relationship setting between the complainant and a respondent.

Sexual Harassment is now defined in the New Act as any:

(a) unwelcome sexual attention from a respondent in a domestic relationship with the complainant who knows or ought reasonably to know that such attention is not welcome; or

(b) unwelcome explicit or implicit behaviour, gestures, suggestions, messages or remarks made towards the complainant or any related person by way of communications delivered or any electronic communication of any sexual nature; or

(c) implied or expressed promise of a reward that is made to the complainant if they have agreed to comply or have complied with a sexually oriented request; or

(d) implied or expressed threat of retaliation or actual retaliation made to the complainant if they refuse to comply with a sexually oriented request.

Online Application for a Protection Order – Section 4

 Section 4 of the Old Act has been replaced and now also allows for secure online submissions of applications for protection orders and an integrated electronic repository.

In terms of the New Act, a complainant may apply to the court for a protection order by lodging the application with the clerk of the court or electronically.

This addition to the New Act is helpful as it enables victims of domestic violence to apply for protection orders from another location, which is important in cases where the mobility of victims is restricted by their abuser.

Contact Us

The new Domestic Violence Bill and the ongoing efforts to combat sexual harassment represent a significant stride towards creating a safer and more equal South Africa. However, enforcement, awareness, and education are crucial in realizing the true potential of these legal changes.

It takes immense courage to face each day when living in an abusive situation, and you have already shown incredible strength just by enduring this hardship. But know that there is a way out, and there is a path towards healing and freedom. Reach out for help when you are ready, whether it’s to friends, family, or support organizations that can offer guidance and resources.

If you or someone you know needs any assistance or guidance with any Domestic Violence related matter, please contact us.

This Post Has 2 Comments

Leave a Reply