An assessment of the constitutionality of section 7(1)(c) of the Domestic Violence Act

Abstract

Domestic Violence is a pervasive social evil which must be combated with every means possible. To this end, the legislator enacted the Domestic Violence Act, 116 of 1998 (hereafter referred to as the DVA) to provide for a fast and accessible process by which the victims of domestic abuse can obtain an interdict to protect themselves against further acts of violence. Section 7(1)(c) of the DVA allows for a court, when considering an application made for a protection order in terms of the Act, to make an order prohibiting the Respondent from entering the shared residence of the Applicant and Respondent. Section 7(1)(d) allows for a court, when considering an application as mentioned, to make an order prohibiting the Respondent from entering any specific part of the shared residence. It is argued that the orders provided for in sections 7(1)(c) and (d) amounts, de facto, to an order that evicts the Respondent from the shared residence. Evictions are a traumatic procedure for the person(s) concerned, and endangers a large variety of human rights. It should therefore be approached with extreme caution to ensure that no person’s fundamental rights are infringed. Section 26(3) of the Constitution of the Republic of South Africa, 1996 (hereafter referred to as the Constitution) determines that no person(s) may be evicted from their home without a valid order of court, which order should be granted only after taking into consideration all the relevant circumstances. Specific pieces of legislation have been enacted to regulate the eviction process, prescribing specific procedures and setting requirements for a legal eviction. When an order is given in terms of section 7(1)(c) of the DVA, these procedures are not followed and the requirements are not met, resulting in illegal evictions. These orders may further infringe upon certain fundamental rights of the Respondent, such as the constitutional property rights set out in section 25, and the right of access to the courts. The concerned sections of the DVA can be justified under section 36 of the Constitution. However, it is argued that the DVA is in practice frequently misused by applicants, to such an extent that it becomes a tool of abuse, defying the whole purpose of the Act and extreme caution should be used by presiding officers when considering applications for orders in terms of sections 7(1)(c) and (d) of the DVA.