Recent amendments to the Domestic Violence Act: curbing religious abuse

religion
23 Nov 2023

Religion remains a significant facet of many South African citizens’ lives, cherished deeply. Regrettably, some people still exploit religion, using it to manipulate and justify domestic violence.

South Africa has a rich demographic when it comes to religion. According to the South African Embassy in the Kingdom of the Netherlands[i], about 80% of South Africans are Christian, about 5% are Muslim, Jewish, Hindu or of other religions, and about 15% are of no religious affiliation.

Since religion plays a big part in South Africa’s society, freedom of religion is also guarded in terms of section 15 of the South African Constitution, stating:

1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

2. Religious observances may be conducted at state or state-aided institutions, provided that ­

a. those observances follow rules made by the appropriate public authorities;

b. they are conducted on an equitable basis; and

c. attendance at them is free and voluntary.

3. a. This section does not prevent legislation recognising ­

i. marriages concluded under any tradition, or a system of religious, personal or family law; or

ii. systems of personal and family law under any tradition or adhered to by persons professing a particular religion.

b. Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

Christian Education South Africa v Minister of Education captured the importance of religion for South Africans in their everyday life by stating:

“There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important. The right to believe or not to believe, and to act or not to act according to his or her beliefs or non-beliefs, is one of the key ingredients of any person’s dignity. Yet freedom of religion goes beyond protecting the inviolability of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of self-worth and human dignity, which form the cornerstone of human rights. It affects the believer’s view of society and finds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.”

It is unfortunate, however, that religion is often cited as a contributing factor towards domestic violence. Parsitau[ii] states:

“From the aforementioned discussions, it is clear that VAWG (violence against women and girls) is deeply rooted not just in power but also in who has that power. It is further rooted in societal norms about men’s authority to exert control over women. Yet, violence against women and girls equally intersects with religious teachings, beliefs, values, and ideologies. Faith actors have also been part of the problem in perpetuating gender- and sexual-based violence.”

Unfortunately, South Africa has seen its fair share of domestic violence being justified on religious grounds. A prominent example hereof is that of Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others, a matter which was dealt with by the Courts all the way from the Magistrates’ Court to the Constitutional Court. This specific matter dealt with a father having hit his then 13-year-old son, subsequently being charged with common assault, whereafter the father relied on the common law defence of moderate and reasonable chastisement and also relied on religious grounds.

In describing the history regarding religious influence and justification of child abuse, the Court affirmed, in paragraph 9:

“Some parents reportedly abused their children under the guise of religion. They viewed childish misbehaviour or misconduct as a sign of demonic possession that required the use of more force or physical pain to deliver their children from evil spirits. This then resulted in many children being regularly subjected to savage and brutal chastisement without any legal protection whatsoever from that cruel or excessive punishment.”

Among other aspects, the Court weighed the rights of the child, as contained in section 28(2) of the Constitution, stating, “[a] child’s best interests are of paramount importance in every matter concerning the child”, to the right to freedom of religion. The Court subsequently declared the common law defence of reasonable and moderate chastisement to be constitutionally invalid.

The enduring and challenging issue of religious justification for domestic abuse has persisted. Despite the Courts discrediting moderate and reasonable chastisement as a common law defence for common assault, essentially eliminating the religious justification for chastisement, a lingering question remains: how does the legal system extend protection against religiously motivated abuse? The association between religion and domestic abuse, while perhaps unsurprising, underscores the complexity of this issue.

For instance, in the Christian Bible, there are multiple texts which seemingly justify the same, such as the often-misquoted Proverbs 13:24 (NIV), stating:

“Whoever spoils the rod hates their children, but the one who loves their children is careful to discipline them.”

Other examples include: Exodus 21:15, Leviticus 20:9 and Deuteronomy 21:18-21 commanding the killing of one’s own children in certain circumstances; and Deuteronomy 25:11-12 commanding the mutilation of a man’s wife in certain circumstances. As such, the Bible is seemingly a rich source by which one can easily justify abuse.

With the recent amendment to section 1 of the Domestic Violence Act, “spiritual abuse” also forms part of the definition of “domestic violence”. “Spiritual abuse”, in turn, is defined as meaning:

  1. advocating hatred against the complainant because of their religious or spiritual beliefs, which constitutes incitement to cause harm to the complainant;
  2. preventing the complainant from exercising their constitutional right to freedom of conscience, religion, thought, belief and opinion, including to give external manifestation to their religious or spiritual convictions and beliefs; or
  3. manipulating the complainant’s religious or spiritual convictions and beliefs to justify or rationalise abusing the complainant.

It is important to note that the latest amendment to the Domestic Violence Act also treats the enforcement of certain domestic violence-related cases more strictly. For instance, the latest substitution of section 3(2) reads:

“A peace officer must, without a warrant, arrest any respondent at the scene of an incident of domestic violence which they on reasonable grounds believe of having committed an act of domestic violence which constitutes an offence containing an element of violence against a complainant.”

Therefore, the South African Police Service is required to arrest any person believed, on reasonable grounds, to have committed an act of domestic violence containing an element of abuse. With the broadened definition of domestic violence to also include spiritual abuse, the way is paved for religious abuse to be curbed in modern society.

While religion is still an aspect many South Africans hold sacred, it can and does also contribute to a great deal of harm in everyday society. Fortunately, it is made more and more difficult by South African law to use religion to justify and cause abuse.

References:

[i] https://zuidafrika.nl/arts-culture/religions/
[ii] Damaris S. Parsitau and Ruth A. Aura, “The Role of Religion and Faith Actors in Violence Against Women and Girls in Africa,” in The Palgrave Handbook of African Women’s Studies, 2020, p. 6

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Philip Venter

Philip Venter is an articulate and driven litigator and has been an admitted attorney since September 2021. He is passionate about the law and specialises in Magistrate’s Court litigation, commercial... Read more about Philip Venter

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