Hello, everyone.
To those of us who are experiencing a recovery from the harsh restrictions under the Level 5 and Level 4 Lockdown regulations- best of luck. I hope you make the most out of it. From what I hear the Government is thinking of having another round with us...
To those who have to start again from scratch- have faith and know that you are not alone. People's needs change and with it the economy. Finding new ways to cater for these new needs may take you some time, but we can all adapt. Still- best of luck to you. I know it is often not easy...
Our courts have also been restricted to a great extent by the regulations issued by our Government under the Disaster Management Act.
It is understandable. Court buildings are normally filled with people and the one thing that our Government tries to do is to prevent large groups of people gathering in one spot- especially one building...
Among the few functions that the Magistrates' Court was still able to perform during Levels 5 and 4 of the Lockdown is the activities Domestic Violence Court. If you live in South Africa I don't think it would be necessary for me to explain why this Court has been allowed to continue functioning through even the most restrictive of levels of our Lockdown, but- if you have missed your grasp of our situation- I am sure these articles will get you up to speed-
Like many others I have found myself reading a lot of things online during the first month of the Lockdown. This particular blog post found its way onto my Facebook timeline during the Lockdown:
The writer of this particular blog post attacks the Domestic Violence Act with what seems to have been a bad experience of his own or of someone that he perhaps knows. As far as I can deduce the author is a member of the public with no legal qualifications, but I would not hold that to the detriment of him or his article. In fact- we as lawyers can learn a lot about the public's needs if we get to hear what they have to say.
I am sure that the feelings shared by the Author in his post are feelings shared by a large number of people whose voices we never hear.
For this reason I have made a commitment to respond to this post- not so much to defend the legislation or the atttorneys mentioned in the post (-but I will definitely do that anyway...) but also to let people know that they are not powerless in the face of the abuse that gets discussed in the post.
If you want to read the post for yourself- here it is:
As for this post- I want us to take a look at the severest of allegations made in the above post:
1. " There is no attempt by the court to gain further insight into the matter, even when the court is aware that a protection order and a divorce summons is served on a father on the same day, at the same exact time."
This just sounds horrible, doesn't it? To understand why any law shall allow such a thing you need to understand what the Domestic Violence Act (Act 116 of 1998) was intended to do.
Yes- we have lawyers who invent ways of using legislation in ways that in which it was never intended, but even that happens to a very limited extent as our Courts keep a watchful eye over what we do.
Nonetheless- the best defense against somebody trying to abuse any legislation in court is simply reminding the court what the legislation was meant to do. In the case under discussion the Domestic Violence Act was intended to-
That is quite a tall order, but our courts are doing their best to deliver on it. How do they begin doing that?
Well... imagine you are tasked with the responsibility of making sure that victims of domestic violence get protected. How will you know who to protect? The answer to that has been made simple- not because it is always the correct answer, but because it is the best answer that we have for now. You attend to the person that approaches you with a complaint.
Now- sure- Complaints need looking into. A court can only decide on a matter after all the available facts have been found and placed before it, but- what if the complainant gets injured, killed or her property damaged while you are still waiting for all the facts to reach you?
And- if minor children are involved- are you sure that they are going to be fine while you wait to hear both sides of the story on the next available court date?
No... I don't think you are sure... No one is...
So- what our Magistrates do upon receipt of a complaint that makes out a case of domestic violence at first glance is this- they issue an interim order.
It is this interim order that got served on the father in the hypothetical case presented by the Author above. The interim order contains:
- Details of what the Respondent is not to do on peril of getting arrested and placed in custody;
- A return date on which he is to appear before court to present his side of the story before the Court decides to make the protection order permanent;
- Advice that the Respondent can shorten the waiting period for the court date to at least 24 hours if waiting for the given court date will cause him any undue hardship- or- if the waiting time is in the circumstances just plain unreasonable.
So- yes- an interim order does indeed get issued without the Court going into all the facts of the matter beforehand, but- I am sure you can see that there are checks and balances in place to prevent any more hardship that is absolutely necessary for justice to be served.
2. "The attorneys normally have a psychologist which receives a constant flow of business and cash flow in exchange for the "correct" report required to satisfy the court."
In my experience of 12 years I have not seen any instance of this happening. These psychologists indeed cost money and the majority of clients that I have seen in the domestic violence courts simply do not have that kind of money. In cases where expert evidence is used such evidence is usually given by a social worker who often renders her services for free.
3. "The attorney will delay and obstruct the interim hearings for months, sometimes years, to exasperate, and legally tire the father into submission, softening the father up for the desired divorce settlement"
The attorney, just like any other party, may request a postponement of the proceedings, but the granting or refusing of such a postponement is an exercise of judicial discretion which is done when the reasons for doing so are clearly placed on record by the person requesting the postponement. The court then usually also ask for submissions from the other party before finally deciding on the postponement.
In many cases the Magistrate orders a postponement on her own initiative, because she feels that the circumstances warrant doing so.
What I can assure you, dear reader, is that the Domestic Violence Court does not care about your divorce settlement. It is simply not responsible for doing so. It's only concern, which governs all rulings and decisions made by them, is the safety of the complainant and any minor children that may be involved.
4. "The settlement process in the divorce act is effectively rendered null and void."
This cannot be further from the truth. Domestic Violence proceedings have nothing to do with divorce proceedings that may be pending alongside it. A divorce may even be finalised before the pending domestic violence proceedings. This is because the two different proceedings each have their own cause, their own forum and their own relevant facts to be considered.
5. "The magistrate normally awards a relocation fee in favor of the woman and children, and further determines interim custody payment amounts."
This generalisation does not even begin to be accurate. The fact is that most Domestic Violence Courts are reluctant to order monetary relief of any kind. Even cases where emergency monetary relief in terms of Section 7(4) of this Act get severely scrutinised to see whether they should not rather be referred to the Maintenance Court. Where monetary relief does get granted it is usually because it is really necessary. Few applications for monetary relief are ever successful in a Domestic Violence Court.
6. "The father is stripped of his assets on the mere allegation of another, whether founded or unfounded."
This is simply untrue. The Domestic Violence Court is not interested in anybody's assets. It may order a party not to damage another's property, but it will simply not order the seizure of any person's assets. If the "asset" happens to be a dangerous weapon, however, I can imagine how and why it can get seized...
Lastly- the post specifically mentions a well-known attorney in my area. Believe me- if you choose to go up against Mr Siebrits relying only on your own wits and acting skills you will most likely end up wanting to write angry blog posts as well. I have met Mr Siebrits in court a few times.
The fact is- Mr Siebrits is not unethical. He is just very skilled and usually more prepared than those he encounters in court. Mr Siebrits is of course not the only attorney who can make court proceedings look like an uphill battle for his opponents. \
There is nothing in law that prohibits interim protection orders getting served alongside divorce summonses. If the circumstances of a case warrant doing just that then that is what should be done.
I know that innocent people can get charged as easily as the guilty and I also know that having to face this kind of allegations in court is not something for which somebody normally asks. This goes for the majority of criminal offences as well, however and I really do not think it is fair to blame legislation or the attorneys or policemen who assist complainants in laying their charges.
I know it has been a while since I have written anything on this blog and it will probably be another while until I do so again. Still- I hope you all stay well and out of trouble until we meet again.
