The State v Godfrey Baloyi

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.

• Whether a person arrested for breach of a domestic violence interdict is an 'accused person' entitled to the presumption of innocence under section 35(3)(h) of the Constitution
• Whether section 3(5) of the Prevention of Family Violence Act read with section 170 of the Criminal Procedure Act imposes a reverse onus of proof on the accused
• If a reverse onus is imposed, whether such limitation of the presumption of innocence can be constitutionally justified under section 36 of the Constitution
• How to balance the state's constitutional duty to provide effective remedies against domestic violence with its obligation to respect the right to a fair trial

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.

The ratio decidendi is: (1) A person charged with breach of a domestic violence interdict under the Prevention of Family Violence Act is an 'accused person' entitled to the presumption of innocence under section 35(3)(h) of the Constitution, because the proceedings result in conviction of a criminal offence and potential imprisonment, not mere coercion or civil process. (2) Section 3(5) of the Prevention of Family Violence Act, properly interpreted in accordance with section 39(2) of the Constitution, imports only the procedural provisions of section 170 of the Criminal Procedure Act, and not the reverse onus contained therein. The burden of proof is a matter of substantive law, not procedure, and therefore falls outside the 'procedures' incorporated by section 3(5). (3) This interpretation best balances the constitutional imperative to combat domestic violence effectively (sections 7(2), 9, 10, 12(1)(c)) with the constitutional right to a fair trial including the presumption of innocence (section 35(3)(h)). (4) The procedures imported may be summary and inquisitorial in nature, which may affect the right to silence, but must preserve the presumption of innocence and the requirement that the state prove guilt beyond reasonable doubt.

Sachs J made several important obiter observations: (1) Domestic violence is a constitutional concern of the highest order because it is systemic, pervasive, overwhelmingly gender-specific, and both reflects and reinforces patriarchal domination. (2) The Constitution imposes positive obligations on the state under section 7(2) to protect the right to be free from violence from private sources (section 12(1)(c)), and this includes effective measures against domestic violence. (3) The hybrid civil/criminal nature of domestic violence proceedings reflects the complex private/public character of domestic violence and the need for remedies that are accessible, speedy, simple and effective. (4) The primary objective of domestic violence interdicts is preventive rather than retributive, seeking ultimately to promote restorative justice. (5) If an interpretation of section 3(5) that affects the right to silence (rather than the presumption of innocence) were adopted, such limitation might be justified under section 36 given the compelling public purpose and the fact that many matters will be peculiarly within the knowledge of the alleged violator, though this issue did not require determination in this case. (6) Parliament must enjoy a reasonable margin of appreciation in choosing appropriate solutions to grave social ills, particularly in developing areas of law with complex nuances. (7) The court noted with concern the obscurity and tortuous language of the legislation, which contributed to interpretive difficulties. (8) Reference was made to South Africa's international obligations under instruments such as the Universal Declaration of Human Rights, the Declaration on the Elimination of Violence Against Women, CEDAW, and the African Charter on Human and Peoples' Rights.

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.