Domestic violence bill: loopholes and necessary ammendments

| Wednesday December 12, 2007 00:00

There is a significant procedural omission in this provision. The provision fails to satisfy the fundamental right to notice; a right that is held by the respondent. Merely dropping the documents cannot be adequate; it does not satisfy the right to notice. There must be a prerequisite that the person serving the documents explain to the respondent the nature and contents of the documents and the consequences that would ensue in the event that he ignores the documents. Since the respondent is not well versed on these matters, it is imperative that he be provided with the necessary knowledge. If one hopes to defend one's rights effectively, one certainly must have, not full knowledge, but at least minimum knowledge of how his rights are going to be affected. This must be done at the commencement of proceedings. In this case by the person serving the documents. To omit explanation of the nature of the documents to the respondent is to deprive him of his significant procedural right. It is to fail to protect the respondent, which failure is unjustifiable and could largely prejudice him. Explaining the nature of the documents could assist a respondent who is illiterate and might not even have an idea of what to do next with the court papers he has been presented with. While protecting and guarding against the applicant's rights is an appropriate thing to do, losing sight of the respondent's rights, especially his elementary procedural rights, does not find proper justification in the eyes of justice and reason. And will never do.

If the Rules of Court (High Court Act) Order 8 rule 2 sub rule 3 makes provision for the person serving a process or document to explain the nature and contents of the documents to the other party, why isn't it necessary here? 

Section 4
Section 4(1) (a) makes it mandatory for the court to hear the application within 7 days from the date it was lodged. Addressing the issue of the scarcity of magistrates in this country and the piling of cases will go a long way into realizing the practicability of this subsection. It is also not clear what the effect would be if the application is not heard within the stipulated period. Can the court go ahead with the application? If it can, what is the significance of the 7 days?

Section 6
Section 6 of the Bill relates to the nature of the proceedings. In terms of this provision, the proceedings shall be heard as a civil case between the parties. It is difficult to imagine criminal proceedings between citizens, without the involvement of the state as a party to the proceedings. Perhaps section 6 is an unnecessary provision. Nevertheless, if proceedings are to be held as a civil case, one must caution against certain ills that are highly likely to hinder the rendition of justice. In a civil case, the court is bound by strict and technical rules of evidence. It is true that at times these rules make the achievement of justice a hard exercise, at times resulting in judges and magistrates coming up with ridiculous and difficult reasoning. It is likely that in proceedings of this nature, such strict adherence to rules of evidence such as the doctrine of hearsay is likely to impede the achievement of the intentions canvassed in the Bill.

In the Trade Disputes Act, minding the difficulties inherent in strict adherence to formal rules of evidence, the legislature enacted section 19 which states that the court shall not be bound by the rules of evidence or procedure ... and may disregard any technical irregularity which does not or is likely to result in a miscarriage of justice. A provision more like this one must be enacted in the Bill if the object of the Bill is to be realized.

In terms of Section 2, cohabitation of the applicant and respondent constitutes a domestic relationship. The inclusion of cohabiting parties is a creditable idea as it extends and broadens the protection-net afforded by the Bill to parties outside the so highly praised institution of marriage. Perhaps this inclusion could also be a sign that the legislature is beginning to recognize cohabitation as a pervasive reality that has been stupidly been ignored by the laws of the country.

The Bill does not, however, define cohabitation. Ordinarily, cohabitation refers to a situation where parties live together and have a sexual relationship without being married. Failure of the parliament to define this term brings a lot of uncertainties. Questions arise such as, is the duration of the relationship material? Would it constitute a domestic relationship if the parties were together for five months? The Bill does not at all assist in answering these questions.

Perhaps, however, there is a modicum of wisdom in the parliament leaving the term undefined. That way, the circumstances of each case would determine whether a certain relationship amounts to a domestic relationship. This would grant the magistrate the latitude and flexibility to survey the facts of a case before him and decide whether protection is warranted. It also avoids the rigidity that only one definition will cause. Additionally, it is difficult to capture cohabitation in one definition, an attempt to run the risk of failing to afford protection to the persons that are entitled to such protection.

But there is some danger in leaving this to the courts. The danger lies in different magistrates narrowly interpreting the term while others employ liberal interpretations. This means where the applicant relies on cohabitation bringing him within 'the protection zone' and the magistrate adopts a narrow interpretation, the object of the Bill will not be satisfied and looming harm could materialise. To eschew such perilous definitional fluctuations, the parliament must at least provide the minimum parameters of the term. Alternatively, instead of restricting domestic relationship to only six instances, the parliament could make the definition non-exhaustive.

Section 7(5)
Section 7(5) of the Bill excludes certain persons from bringing an application to court. The excluded persons are: a minor, the mentally challenged, persons under the influence of an intoxicating substance and persons who are unconscious! In terms of this provision, an unconscious applicant 'who knocks' on the court doors attempting to bring an application will be told, 'since you are currently not conscious, the law does not allow you to bring an application'. How does an unconscious person contemplate applying to court? Only this legislature is smart enough to imagine such a situation. It is preposterous for the parliament to have even pondered excluding such persons.

The Constitution does not exclude an unconscious person from becoming a president; if such exclusion can ever be a valid one and most of all, a sensible one, perhaps the parliament must amend the Constitution. This would avoid the possibility of this country being ruled by an unconscious person!

Gosego  Lekgowe
TONOTA