Know Your Duties: Understanding Health Care Workers’ Duties in Terms of the Amended Domestic Violence Act

08 May 2023 | By Harsha Ghiwala,Nasreen Solomons
healthcare workers
08 May 2023 | By Harsha Ghiwala,Nasreen Solomons

In January 2022, President Ramaphosa signed into law what has become the ‘Domestic Violence Amendment Act 14 of 2021’. Its purpose being to bring into effect some substantial and far-reaching amendments to the Domestic Violence Act 116 of 1998. On 14 April 2023, the Amendment Act was brough into operation. As such, understanding the content of the Amendment Act is an important task for those directly implicated, to ensure its proper implementation for those who need it most. 

While a full review of the amendments is beyond the scope of the current article, we will delve into some of the notable additions. These include: new definitions; the creation of functionaries, and with that, the formulation of duties for reporting that seek to protect particular victims of domestic violence. As per the Act, victims of domestic violence will be referred to as complainants, while the perpetrator of the domestic violence will be referred to as the respondent.  

As it stands, the Act creates an avenue for complainants suffering any form of domestic violence to seek assistance from their nearest magistrates’ court. It is important to note that to apply for a protection order, two factors must exist: 1) A domestic relationship must exist or have existed between the complainant and the respondent; and 2) That the complainant is being or has been subjected to domestic violence, or has been threatened with same. The definition of domestic violence is set out in section 1 of the Act and is usually far more extensive than people realise.  

The domestic relationship between the two parties that makes it possible for a complainant to ask for relief is often misunderstood. There are five categories that define a domestic relationship. They include the following: marriage; co-habiting life partners; parents, or those sharing parental responsibilities; engagement, dating, in an actual or perceived intimate, romantic or sexual relationship, regardless of the duration; or those in a close relationship who share the same residence. With respect to the last category, the court will consider the nature of the relationship between the parties, including, among other things, its length, degree of intimacy, and the level of dependence. Conceivably, this could result in the definition including close friends or housemates who live or have lived in the same home.  

The Amendment Act has also broadened the definition of domestic violence. It now includes, inter alia, ‘coercive behaviour’, ‘controlling behaviour’, ‘exposing a child to domestic violence’ and ‘related person abuse.’ The act of exposing a child to domestic violence has been worded carefully to ensure that only perpetrators of domestic violence can be included and therefore sanctioned through the protection order. The scope of the Act extends exposing a child to domestic violence to include the child seeing, hearing, or causing a child to ‘experience the effects of domestic violence.’ The concept of ensuring the protection of those who extend beyond the complainant but who become victims of domestic violence by virtue of their relationship with the complainant is further cemented by the inclusion of related person abuse. Related person abuse will ensure that a domestic violence protection order can protect any member of the complainant’s family or household, or anyone who is ‘in a close relationship with the complainant.’ With these amendments the amended Act has sought to both recognise the ways in which domestic violence can be perpetrated, as well as the impact it can have on those closest or related to the complainant.  

Most notably for our health care workers is the creation of the term ‘functionaries’. This term defines persons belonging to a certain category or employed by certain entities and creates specific duties for them. The Amended Act lists functionaries as medical practitioners, health care personnel, officials employed by a public health establishment (as defined by the National Health Act and designated by the Director-General: Health, as a functionary), educators or caregivers, and social workers. The import of creating this category of persons is that functionaries carry certain duties. These require those who, while performing their duties or exercising their functions, come to believe or suspect, based on reasonable grounds, that a child, an older person or a person with a disability may be suffering domestic violence, to complete Form 2. This Form can be found in the Regulations (Report and Risk Assessment by a Functionary). Once completed, it must be submitted to a social worker or a member of the South African Police Service. In addition, a functionary who believes that the complainant requires further services must inform the complainant of this, and then refer them for such services. It should be noted that a report by a functionary is protected under the Amended Act and would therefore not render a functionary liable to criminal, civil or disciplinary action. This is irrespective of any code of conduct, law or policy that says otherwise. Functionaries are also entitled to have their identity kept confidential, unless specifically required otherwise. In addition to this, any adult who suspects, believes or knows that one of the three categories of persons identified above is being subjected to domestic violence must make a report; however, the failure of any adult other than a functionary to report will be an offence.  

This duty created by the Amendment Act should form part of directives, training and many discussions moving forward to ensure its successful implementation to protect victims who are seen as particularly vulnerable. It is with these provisions that the legislature has clearly widened the responsibility for the implementation of the Act to those who extend far beyond SAPS, court clerks and magistrates. It is thus necessary for healthcare workers to understand the role they play in protecting those who suffer domestic violence, which will be further set out in the forthcoming Health directives issued in terms of the Act.  

Given the position and work of the Gender, Health and Justice Research Unit, we remain well-equipped to assist with the protection of those who suffer domestic violence by training and providing capacity building to healthcare workers in understanding their duties.