Ahmed Raffik Omar v The Government of the Republic of South Africa and Others

The applicant, Mr Ahmed Raffik Omar, was involved in an abusive domestic relationship with his estranged wife, Ms Halima Joosab. Several protection orders were issued against him under the Domestic Violence Act 116 of 1998. In one such matter, the parties consented to a final protection order in the Durban Magistrates’ Court, which included various prohibitions and obligations and to which a suspended warrant of arrest was attached in terms of section 8 of the Act. After an alleged breach of the order, the warrant was executed and later suspended again. Mr Omar challenged the constitutionality of section 8 of the Act in the High Court, arguing that it unjustifiably infringed his constitutional rights. The High Court dismissed the application, and he sought leave to appeal to the Constitutional Court.

Leave to appeal was granted, but the appeal was dismissed. Section 8 of the Domestic Violence Act 116 of 1998 was held to be constitutional. No order of invalidity was made.

This case confirmed the constitutionality of the enforcement mechanism of protection orders under the Domestic Violence Act. It affirmed the State’s positive constitutional duty to protect victims of domestic violence and recognised that effective remedies may require departures from ordinary criminal procedure, provided sufficient safeguards are present. The judgment is a leading authority on balancing accused persons’ rights with the rights to dignity, equality and security of victims of domestic violence.