Coercive and controlling behaviour in the Domestic Violence Act

Abstract

This article focuses on two definitions of domestic violence — ‘coercive behaviour’ and ‘controlling behaviour’ — which were formally introduced into South African law by the Domestic Violence Amendment Act 14 of 2021. It tracks the legislative process, including an overview of the different iterations of the definitions as they appeared in the preceding Bills. This is followed by an analysis of the definitions’ grammatical, conceptual and legal meanings (including considering applicable foreign case law), after which various indicators are formulated. The article then examines whether the definitions are fit for purpose by analysing whether they are constitutional. This investigation reveals that the definitions suffer from numerous deficiencies: they are vague, overbroad and ambiguous, rendering them potentially unconstitutional. However, despite these deficiencies, the importance of the definitions — informed by the legislature’s intentions and the prevailing societal context, amongst other things — is likely to deter any potential constitutional challenges disputing their validity. The article concludes by proposing alternative definitional formulations that, if implemented, may circumvent any potential constitutional challenges.