SUBMISSION TO THE PORTFOLIO COMMITTEE & SELECT COMMITTEE ON WOMEN, YOUTH, CHILDREN AND PEOPLE WITH DISABILITIES: 
IMPLEMENTATION OF THE DOMESTIC VIOLENCE ACT, 
NO. 116 OF 1998

Prepared by the Tshwaranang Legal Advocacy Centre to End Violence Against Women

PO Box 31006
Braamfontein 2017
Tel: (011) 403-4267
Fax: (011) 403-4275

Submitted 22 October 2009

SUBMISSION TO THE PORTFOLIO COMMITTEE & SELECT COMMITTEE ON WOMEN, YOUTH, CHILDREN & PEOPLE WITH DISABILITIES: 
IMPLEMENTATION OF THE DOMESTIC VIOLENCE ACT, NO. 116 OF 1998

1.	Introduction

Tshwaranang Legal Advocacy Centre (TLAC) is an NGO established to work towards the eradication of secondary victimization of women by the law and the criminal justice system. It undertakes various activities to achieve its objectives, including providing direct legal services to women who are survivors of gender based violence, and conducting strategic research designed to provide better insight into the needs of women.  TLAC thus has direct experience of the many difficult issues that women who have been victims of gender based violence, face daily. Our submission is endorsed by:
o	the Ceasefire Campaign  
o	the Thohoyandou Victim Empowerment Programme (TVEP)
o	the Legal Resources Centre (LRC)
o	the National Shelter Movement of South Africa (NSMSA)
o	Nisaa Institute for Women’s Development

TLAC thanks the Committee for the opportunity to make submissions on the implementation of the Domestic Violence Act, no. 116 of 1998. As one of the objectives for the hearings, the Committee has identified the need to understand shortcomings in government’s response to domestic violence. This submission is intended to deal with one such shortcoming: the absence of a housing response to domestic violence. 

Section 26 (1) of the Bill of Rights states that everyone has the right of access to adequate housing. The White Paper also affirms that housing is a basic human right and states that government “is under a duty to take steps and create conditions which will lead to an effective right to housing for all. It is also under a duty to refrain from taking steps which promote or cause homelessness.” This submission sets out to show how domestic violence violates this right and also contributes to abused women’s homelessness. Thereafter it proposes measures that government could take to ensure abused women’s right of access to housing, drawing on existing housing legislation and policy including Breaking New Ground, the 1994 White Paper, A New Housing Policy and Strategy for South Africa, as well as the Housing Act (no 107 of 1997).

2.	Domestic violence and the entitlements of housing rights

The content, or entitlements, of housing rights in South Africa have not, as yet, been spelt out in detail. In the absence of this, we have drawn on the entitlements identified in General Comment No 4 of the United Nations Committee on Economic, Social and Cultural Rights (ECOSOC). This framework is then applied to the particular circumstances of abused women to show how domestic violence denies women the right to adequate housing. 

General Comment No 4 sets out seven different entitlements which constitute adequate housing: legal security of tenure; availability of services, materials and infrastructure; affordable housing; habitable housing; accessible housing; location; and culturally adequate housing. Of these, domestic violence is perhaps most likely to affect women’s legal security of tenure, and the entitlements to affordable, habitable and accessible housing. 

2.1. Legal security of tenure
All persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.  Governments should consequently take immediate measures aimed at conferring legal security of tenure upon those households currently lacking such protection.

Episodes of domestic violence threaten women’s security of tenure in a variety of ways. First, women are periodically or even permanently evicted by their partners. How frequently this occurs is unknown as only a very few studies have explored this question. In one study (Vetten and Hoosain, 2006), 14 out of the 32 women interviewed had been forced to leave the place in which they were living many times during the relationship. This was either to escape further violence or because they had been told to leave. Research conducted in the rural areas of the Southern Cape also recorded women (and sometimes their children too) being chased out of the home late at night or in cold weather (Artz, 1999).

A retrospective review of a random sample of 2 208 applications for protection orders in Alberton and Temba between 2000 and 2001 found that 4% of applicants cited their fear of being evicted as their reason for requiring urgent protection. A further 9% said the application was urgent because the respondent needed to pay for the accommodation and support of the family (Schneider and Vetten, 2006). 

Second, women are also displaced from their homes, having to move to shelters or other accommodation to escape their abusive partners. In a study undertaken in Die Bos, an informal settlement in the Western Cape, domestic violence accounted for 20 per cent of moves recorded (Ross, 1996). An extreme example of such displacement is offered by the case of S v Engelbrecht, which involved a woman killing her abusive husband. This particular matter records how Mrs Engelbrecht moved six times in the space of eighteen months to escape her abusive husband.   

Third, where women depend on their male partners for access to housing, reporting the abuse may put the couple at risk of being evicted. In the farming context, where men’s accommodation is often dependent on their working for the farmer, men may be dismissed when women report the violence to a supervisor or manager. Both parties will then have to vacate their accommodation. Alternatively, if women report the matter to the police and the man is arrested and unable to work for a period of time, this too may result in the man’s dismissal and consequent eviction from the property (Parenzee and Smythe, 2003). 

2.2. Affordable housing
The personal or household costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Those unable to find affordable housing should have access to housing subsidies, while tenants should be protected from unreasonable rent levels or rent increases. 

Patterns of employment and wage-earning in South Africa are such that women generally earn less than men and are also less likely to be in full-time, permanent employment. As a result, women are frequently economically dependent on men and in the absence of alternative, affordable accommodation, effectively trapped with their abusive partners: 
I always thought that if I had to leave with this child of mine where would we go? What would my child eat? What would become of us both? We’ll suffer, we’ll starve. This man he is the only one who has the money. He’s the one who could feed us. He’s the one who could pay where we live (quoted in Vetten and Hoosain, 2006).

Yet even when women do leave to stay in a shelter, or with family members, they may ultimately return to their abusive partners because they have nowhere else to go when their allotted time in the shelter has lapsed, or overcrowding in family members’ homes becomes unbearable (Mathews and Abrahams, 2001). This is how a police officer expressed his frustration with this absence of alternatives:  
In May we had a domestic violence case and the complainant was taken to a shelter. But they can only stay at the shelter for three months. It is four months since we helped the complainant and her case is still not dealt with by the courts. It is not finalized. This woman is out of the shelter and has moved into the home where the respondent is because she has nowhere else to go (quoted in Parenzee et al 2001: 84).

Women who cannot afford any form of accommodation are at risk of becoming homeless. The extent of abused women’s particular homelessness is however, often disguised. While women are more likely to move between family, friends and shelters in their search for accommodation, some do literally end up sleeping on the streets. This too places women at risk of violence. Dladla et al’s interviews (2004) with 28 homeless women living in transitional housing schemes and the various abandoned buildings dotting inner-city Johannesburg, found that some women had entered into relationships specifically to secure accommodation, as well as their personal safety. While some of these women had been moderately and even severely injured by their partners, they nonetheless saw their partners as protecting them from other men in the homeless community. As one participant observed, capturing this perception: 
I think they [other men in Drill Hall] do this to us [swear and threaten] because we are older women and do not have the protection of male partners (quoted in Dladla et al 2004: 42).    

2.3. Habitable housing
Adequate housing must provide inhabitants with adequate space and protect them from cold, damp, heat, rain, wind or other threats to health, structural hazards and disease vectors. The physical safety of occupants must also be guaranteed.

Many women are not physically safe in their homes. A 1997 community-based prevalence study conducted in three provinces found that 27% of women in the Eastern Cape, 28% of women in Mpumalanga and 19% of women in the Northern Province had been physically abused in their lifetimes by a current or ex-partner (Jewkes et al, 1999). The same study also investigated the prevalence of emotional and financial abuse experienced by women in the year prior to the study. This was found to have affected 51% of women in the Eastern Cape, 50% in Mpumalanga and 40% in Northern Province (ibid). A study of 1 394 men working for three Cape Town municipalities found that approximately 44% of these men were willing to admit to the researchers that they abused their female partners (Abrahams, Jewkes and Laubsher, 1999). At its most extreme, domestic violence also results in women’s deaths. Approximately half of all South African women murdered in 1999 were killed by their intimate partners, translating into a prevalence rate of 8.8 per 100 000 of the female population aged 14 years and older - the highest rate yet reported by research anywhere in the world (Mathews et al, 2004).

In addition, the design of houses and housing settlements also plays an important role in reducing violence against women and increasing their sense of personal safety. Interviews with women in Gauteng about their experiences of public housing highlighted the need for houses to be designed with two doors instead of one. Women pointed out that it was made more difficult to flee an abusive partner when there was only one door serving as both exit and entrance. 

Research on violence against women in public housing estates in the USA suggests that how public housing developments are managed and run is another factor affecting the occurrence of domestic violence (Raphael, 2001). The study conducted amongst homeless women in Johannesburg’s inner-city points to similar conclusions. The women in this study who lived in those homeless and public housing communities characterised by extremes of poverty, social instability, violence and tenure insecurity reported higher levels of domestic violence and abuse than those women living in more settled environments. The two most fragmented communities had also acquired enough of a reputation for violence that, according to the respondents, neither the police nor the emergency medical services were willing to respond to calls for assistance. By contrast, in one of the transitional housing developments, which was a much more stable residence with more security and a structured internal management system in which residence rules were generally enforced, respondents reported overall lower levels of inter-personal violence. These factors, coupled to the suggestion of more economic security amongst the households of the women respondents, could explain the lower reported levels of domestic abuse in this particular residence (Dladla et al 2004: 35).

2.5. Accessible housing
Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Disadvantaged groups such as the elderly, children, the physically disabled, the terminally ill, HIV positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other vulnerable groups should be ensured some degree of priority consideration in the housing sphere. Both housing law and policy should take fully into account the special housing needs of these groups.

Women generally have been subject to discrimination on a variety of grounds including gender, race and socio-economic circumstances (to name but a few), as well as in a range of spheres, including the workplace, political realm and the family. Domestic violence, which causes considerable hardship, both materially and emotionally, may further compound women’s disadvantage – particularly where it contributes to women’s impoverishment. Vetten and Hoosain’s (2006) small-scale, exploratory study showed how in some women’s relationships, abusive partners took women’s money and property from them, and also prevented women from seeking or maintaining employment. Those men who refused to uphold their duty of support also effectively created two households under one roof: one occupied by women and their children in which they might be denied adequate shelter, nutrition and health care; and another for the man in which he maintained himself. Such women are placed in the invidious position of having to choose between greater personal safety, along with homelessness and destitution, or dependence on others; or violent and dangerous personal circumstances - but with some degree of economic and material support for themselves and their children. Because this group of women is effectively both destitute and homeless when displaced or forced from their homes by domestic violence, they ought be prioritized in relation to housing and other forms of social and material support. 

South Africa’s housing policies do not discriminate against women and are explicit in their rejection of such discrimination. However, there is some suggestion that those tasked with applying policy may take a discriminatory approach towards women’s property rights. The national housing subsidy database identifies many women, along with their male partners, as having benefited from this subsidy. However, those responsible for recording ownership of the house have been known to record it under the name of the male partner alone. Should the relationship come to an end, then such women will have no legal right to the house, as well as being ineligible for any further subsidies (Charlton, 2004). 

3.	Recommendations: Policy and legislative interventions to ensure abused women’s access to adequate housing. 

The first portion of this submission has established that domestic violence violates women’s right to adequate housing in a number of ways. However, in interpreting Section 26 (1), South African courts have emphasised the collective right to a reasonable policy, rather than the individual right to a minimum core entitlement to housing. Following this approach, this section of the submission examines existing policy and law, pointing to how it could be adapted to accommodate the needs of abused women. 

The White Paper already highlights habitability and security of tenure as integral to the national housing vision. Non-discrimination, as well as special needs housing, are also identified as central approaches to government’s housing strategy. Section 2(1)(e) of the general principles applicable to housing development contained in the Housing Act (no 107 of 1997), also highlights the importance of measures to prohibit unfair discrimination on the grounds of gender; the importance of meeting special housing needs; as well as taking steps to promote the housing needs of marginalized women. Finally, one of the key objectives of Breaking New Ground is “Combating crime, promoting social cohesion and improving quality of life for the poor.” In terms of this objective, addressing domestic violence, a crime that fragments families, contributes to women’s impoverishment and substantially diminishes their quality of life, would therefore fall within the mandate of the Department of Human Settlements.  
 
All women in abusive relationships will not require state assistance with housing. Some women, for a variety of reasons, may remain with their abusive partners, while others may have the means to secure housing of their own. It is also not always necessary that the woman and children should leave the home either. Further, the nature of homelessness resulting from domestic violence also varies, being temporary or short-term in some instances, or recurrent, or even permanent in other instances. Finally, the provision of housing alone is not always sufficient to address the difficulties women may face. Indeed, if poor women are not able to earn a livelihood, they may still lose their homes, being unable to pay their water and electricity rates and other costs associated with home ownership. Housing thus needs to be embedded in a range of other support services such as job skills training or income generation and employment opportunities; the provision of social security, psycho-social services and childcare; as well as legal assistance. An adequate set of policy responses will need to fit this diversity of women’s housing needs.

Two broad options present themselves: developing or strengthening measures enabling women to remain safely in their homes; and measures aimed at providing women with alternative accommodation and housing.  

3.1. Enabling women to remain in their homes
Sections 7(1)(c) and 7(2) of the DVA allows for the eviction of abusers from the joint home if it is in the best interests of the complainant. This provision recognizes that women have limited access to shelters and should not be forced into homelessness to avoid abuse. Research however, notes its infrequent application (Artz, 2003; Schneider and Vetten, 2006). In Alberton court for example, 18% of applicants asked that the respondent be ordered not to enter the shared residence – but only 4% were granted this relief. Alberton court was more willing to order the abuser not to enter a residence when this residence was owned or rented by the victim: 35% of applicants requested that the respondents be ordered not to enter the applicant’s residence – 30% were granted this relief. Very few respondents were ordered to pay the mortgage (less than 6% of cases in Alberton and 3% in Temba) (Schneider and Vetten, 2006). It is clearly necessary to provide magistrates with guidelines around the eviction of abusive parties, even if only on a temporary basis. 

A further key area of intervention is the strengthening of women’s property rights on dissolution of the relationship. Here it will be necessary to scrutinize current matrimonial property regimes to ensure that women’s property claims are upheld and the marital estate equitably broken up. However, existing legislation offers little or no protection to those relationships currently not recognized by civil law, such as women married in terms of Muslim law, or women who are co-habiting. There is an urgent need to finalise law reform processes that recognize and safeguard women’s claims arising from these relationships, specifically the Domestic Partnerships Bill. What also needs to be settled is the question of whether or not access to subsidized housing should be allowed again following a divorce. This question is particularly pertinent to that group of women whose names may have been registered on the housing subsidy but not on the title deeds.

3.2. Providing access to alternative housing and accommodation
For safety reasons, it is better for some women to live at addresses unknown to their partners, or in residences to which the abuser has no access. Where women require temporary and short-term housing, shelters may be the most viable option. However, at the last count, the Department of Social Development listed but 89 shelters nationally, many of which face ongoing funding and sustainability problems. More shelters will need to be established in areas where they do not currently exist, while all shelters will require additional resources and capacity to remain effective. 

The need for new or expanded policy is greatest in relation to women’s medium to long-term housing needs. In the context of South Africa’s enormous housing backlog and lengthy waiting lists, this is not without its challenges. BNG however, makes reference to a number of existing housing instruments, many of which could be expanded to recognize abused women’s circumstances. These include the policies around transitional, social, communal and cooperative group housing, as well as the proposed rural housing programme. In expanding these policies to accommodate abused women’s needs, attention must also be paid to how these housing facilities are managed and women’s safety assured. Because BNG already notes the importance of enhancing housing design, developing housing that promotes women’s safety fits well within this proposal. 

Finally, BNG also notes that many more institutions are needed to provided social housing and to this end, it emphasizes building both institutions as well as capacity to implement these policies. This recognition potentially opens the way for many organizations currently providing short-term shelter to abused women to consider providing longer-term housing assistance to such women and their children.  

We therefore recommend that the Department of Human Settlements consults with organizations addressing domestic violence – particularly those running shelters – to examine how policies could be expanded to address the housing needs of abused women and their children. 

References

Artz, L. (1999). Violence Against Women in Rural Southern Cape: Exploring Access to Justice Through a Feminist Jurisprudence Framework. Institute of Criminology, University of Cape Town.

Artz, L. (2003). Magistrates and the Domestic Violence Act: Issues of Interpretation. Institute of Criminology.

Charlton, S. (2004). An Overview of the Housing Policy and Debates, Particulalrly in Relation to Women (Or Vulnerable Groupings). Johannesburg: Centre for the Study of Violence and Reconciliation.

Community Agency for Social Enquiry (CASE). (2000). Towards the Formulation of a Policy on Women in Housing. Research commissioned by the Gauteng Department of Housing

Dladla, J., Hargreaves, S., Greenberg, S. and Vetten, L. (2004). “That Place is kwaMyamandawo”: Fear and Survival Startegies Among Homeless Women Living in Inner-city Johannesburg. Johannesburg: Centre for the Study of Violence and Reconciliation. 

Jewkes, R., Penn-Kekana, L., Levin, J., Ratsaka, M. and Schrieber, M. (1999). “He must give me money, he mustn’t beat me”: Violence against women in three South African Provinces. Pretoria: Medical Research Council. 

Mathews, S. and Abrahams, N. (2001). An Analysis of the Impact of the Domestic Violence Act (No. 116 of 1998) on Women. The Gender Advocacy Programme and The Medical Research Council.

Mathews, S., Abrahams, N., Martin, LJ., Vetten, L., van der Merwe, L. and Jewkes, R. (2004). “Every six hours a woman is killed by her intimate partner”: A National Study of Female Homicide in South Africa. MRC Policy brief no. 5, June 2004.

Office of the United Nations High Commissioner for Human Rights. Fact Sheet No. 21, The Human Right to Adequate Housing. URL consulted (July 2006) www.ohchr.org/english/about/publications/docs/fs21.htm.

Parenzee, P, Artz, L and Moult, K. (2001) Monitoring the Implementation of the Domestic Violence Act First Research Report 2000 - 2001, Institute of Criminology, University of Cape Town: South Africa.

Parenzee, P. and Smythe, D. (2003). Domestic Violence and Development: Looking at the Farming Context. Institute of Criminology, University of Cape Town: South Africa.

Raphael, J. (2001). ‘Public Housing and Domestic Violence’ in Violence Against Women, Volume 7, Number 6

Ross, F. (1996). “ “Vat jou goed en trek…” The effects of domestic violence on domesticity in an informal settlement” in Lorraine Glanz and Andrew Spiegel (eds). Violence and Family Life in a Contemporary South Africa: Research and Policy Issues. Pretoria: HSRC Publishers

Schneider, V. and Vetten, L. (2006). Going somewhere slowly? A comparison of the implementation of the Domestic Violence Act (no. 116 of 1998) in an urban and semi-urban site. Johannesburg: Centre for the Study of Violence and Reconciliation.

Vetten, L. and Hoosain, R. (2006). Money, money, money: An exploratory study of the economics of abuse. CSVR Gender Programme, Policy Brief No. 04, July 2006.