11 February 2022

Op Ed: Magistrate’s Courts fail to protect womxn who survive violence – WLC Attorney Chriscy Blouws and Candidate Attorney Senamile Madlala evaluate how the magistrate’s courts fail to adequately protect womxn

Violence against womxn remains a pandemic in South Africa, and when womxn experience domestic violence, Magistrate’s Courts are often the first entry point to access justice. The stated purpose of the Domestic Violence Act 116 of 1998 (the “Act”) is to give victims the maximum protection from domestic abuse that the law can provide. Furthermore, it is mandated to introduce measures which sought to ensure that relevant organs of state give full effect to the provisions of the Act. The Magistrate’s Courts which hear domestic violence matters are designed to afford protection to womxn and children who are recognised as vulnerable and particularly susceptible to violence in our society.  

In this opinion piece we reflect on the lived realities of womxn and the difficulties they face when accessing the magistrate’s courts to report domestic violence and how these very courts designed to protect womxn are continuously used by perpetrators to further victimise and silence womxn.

Does the justice system adequately protect womxn

When womxn approach the Magistrate’s courts to seek protection from domestic violence, their perpetrators abuse court processes by bringing counter applications against them, asking the court to silence them and use technical points to delay and frustrate the process.

Similarly, when womxn report domestic violence to the South African Police Service (SAPS) they recall their experience with police to be devastating and traumatising as they are often met with caution and suspicion and receive treatment that is informed by officials’ preconceived societal beliefs and ideas instead of the law.   This results in information regarding womxn’s experience of domestic violence not being adequately collated and processed.

The Women’s Legal Centre (WLC) continues to observe this through the clients we advise and represent. We have experienced firsthand how womxn who try to access justice through the courts and police are left feeling humiliated, emotionally drained, and defeated.

This lack of trust in the justice system has caused womxn to openly speak about their experiences of domestic violence in both private and public settings. Social media has become an advocacy tool for womxn to speak about their experiences of domestic violence and their harrowing experiences with the justice system. They use these platforms to not only create awareness but also to create a sense of community and solidarity with other womxn who have experienced violence.  

This movement, however, has seen an increasing backlash in which perpetrators are using the very courts designed to protect womxn to seek vindication. This creates confusion about the purpose and powers of the courts hearing matters in terms of the Domestic Violence Act and whether the Domestic Violence laws can be used to silence womxn.

The WLC have represented several womxn who have been failed by the magistrate’s court. For one of our clients, the magistrate’s court ordered in its judgement that she was not allowed to tell anyone that she was raped by her ex-boyfriend. In another matter, our client’s husband used video footage of the abuse to substantiate his application to silence his wife from speaking about the abuse she had endured by him.

We recently saw similar tensions in the Muller vs Maboe case in which both parties sought protection orders against each other in the Cape Town Magistrate’s Court for different forms of abuse. A statement released by Katlego Maboe’s legal representatives stated that they were relieved with the outcome of the matter as the court had not made a finding of acts of domestic violence that were allegedly perpetrated against Ms. Muller, and as such, the matter was dismissed.

Monique Muller posted a very different outcome on social media stating that the court did not make an order on the merits of any acts of domestic violence, instead, it endorsed a mutual agreement between two parties to set aside their interim protection orders against each other on the basis that there have been no new acts of domestic violence since the Interim Protection Orders were granted.

The first question that arises is whether the statement made by Katlego Maboe is correct in terms of the DV Act and the second question that arises from the statement made by Monique Muller is whether the courts are cognisant of the lived realities of womxn who seek protection from domestic violence.

What are the courts powers?

The DV Act provides that where an application for protection from domestic violence is made and the court is satisfied that there is prima facie evidence of domestic violence, and undue hardship may be suffered by the complainant as a result of such domestic violence, then the court must issue an interim protection order. Where the court does not have prima facie evidence of acts of abuse, it can issue a notice to show cause, which allows the respondent to return to court and provide reasons as to why a final order should not be issued against them. On the return date in any of these instances, the court must request any additional evidence and hear this evidence either orally or on affidavit and issue a final protection order if it finds on a balance of probabilities that there have been acts of domestic violence.

What complicates the issue of domestic violence and evidentiary burden is its intimate nature. In most cases, the violence occurs in the privacy of the parties’ homes and relationship. In cases where the abuse is of an emotional, verbal, psychological and economical nature, obtaining and presenting evidence to the courts is difficult. These evidentiary hurdles are further frustrated by perpetrators who then use the system to further victimise survivors and delay proceedings.  This time delay becomes a costly process to the very womxn the system is meant to protect.

Moreover, due to the abuse between the complainant and respondent occurring in relationships (whether familial or intimate) there are more considerations taken into account, like the shared custody of minor children. This is an important factor, especially in cases where the complainant is financially dependent on the respondent.

Once the court has considered all of the necessary evidence, the magistrate has the power to either confirm an existing protection order and make it a final order, amend the existing interim protection order and make it a final order, or set aside the interim protection order. This is where we see magistrates fail to provide effective remedies and lack the necessary gendered lens to adequately protect women. The case above is an illustration thereof.

No recourse for women

While the domestic violence laws and processes exist on paper, the lived reality of womxn is that there is no effective recourse for survivors of violence, in particular those survivors who choose to speak about their abuse and experience publicly.

When womxn speak publicly about their abuse and experience with the justice system, they do so at a great cost. When a womxn wishes to report violence to the police, she is faced with damning statistics, which illustrate a failing criminal justice system. Where womxn attempt to obtain a protection order, perpetrators use the same courts to obtain counter orders which silence them, and where womxn choose to speak publicly as a last resort and in an attempt to break the silence and stigma of violence, they are faced with threats of defamation suits brought against them and intimidated back into silence. All of this contributes to the secondary trauma of women through the justice system.

It then becomes clear that our courts and judicial officers are failing to provide effective protection to womxn. The justice system and its role-players need to place the lived reality of womxn who survive violence and the trauma they experience at the forefront of all violence matters in order to give effect to their substantive rights to equality, dignity and to access justice through meaningful and effective implementation of the law. While our laws provide for this on paper, the reality is that whichever route womxn choose to pursue, it comes at a great cost to their emotional, physical, financial and psychological wellbeing. The reality for most womxn is that the justice system does not believe them, which leaves them feeling unheard, alone and defeated with no other recourse.

Written by WLC Attorney Chriscy Blouws and Candidate Attorney Senamile Madlala.

The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.

For media enquiries contact Nomathemba Masemula at communications@wlce.co.za or Andile Cele at andile@wlce.co.za .

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