The appellant, an army officer, was subject to a domestic violence interdict obtained by his wife (the complainant) under section 2(1) of the Prevention of Family Violence Act 133 of 1993. A warrant for his arrest was granted but suspended. The complainant alleged that the appellant subsequently assaulted her again and threatened to kill her. She reported this to the police and made an affidavit. The appellant was arrested and brought before a magistrate for an enquiry into the alleged breach of the interdict under section 3(4) of the Act. Section 3(5) of the Act incorporates by reference the procedures set out in section 170 of the Criminal Procedure Act 51 of 1977, which includes language suggesting a reverse onus: the accused must satisfy the court that his failure to comply was not due to fault on his part. At the enquiry, the magistrate stated the onus was on a balance of probabilities, found the appellant's version improbable, convicted him of violating the interdict, and sentenced him to twelve months imprisonment, six suspended. The appellant appealed to the Transvaal High Court on the basis that the section imposed an unconstitutional reverse onus, which the High Court upheld, declaring section 3(5) invalid and referring the declaration to the Constitutional Court for confirmation.
1. The Constitutional Court declined to confirm the order of the Transvaal High Court declaring section 3(5) of the Prevention of Family Violence Act 133 of 1993 invalid. 2. The matter was remitted to the Transvaal High Court to be dealt with in accordance with the Constitutional Court's judgment.
This case is significant for several reasons: (1) It establishes the constitutional framework for balancing the state's duty to combat domestic violence with fair trial rights. (2) It affirms that persons subject to domestic violence enquiries are 'accused persons' entitled to constitutional fair trial protections. (3) It provides important guidance on interpreting legislation to promote the spirit, purport and objects of the Bill of Rights under section 39(2). (4) It distinguishes between procedural and substantive law in determining what is imported by statutory cross-references. (5) It recognizes domestic violence as a constitutional concern that implicates rights to dignity, equality, bodily integrity, freedom from torture and cruel treatment, and freedom from violence from private sources. (6) It acknowledges the gendered, systemic nature of domestic violence and its relationship to patriarchal domination and discrimination. (7) It demonstrates judicial sensitivity to the unique 'private/public' and 'civil/criminal' hybrid nature of domestic violence proceedings. (8) The judgment provides a model for constitutional interpretation that seeks to harmonize competing rights and state obligations rather than treating them as absolute conflicts.