OF FENCES AND PEACE BETWEEN NEIGHBOURS
Keywords:obstacles to communication, friendship, protector of privacy, neighbourly relationship, binding-over orders, peace orders
The speaker in the poem “Mending Wall” by American poet Robert Frost questions the wisdom of the saying that “Good Fences Make Good Neighbo[u]rs”. The walls or fences referred to in the poem represent more than just physical barriers separating adjacent premises; the speaker sees them as representing obstacles to communication and friendship between individuals. Seen from the
perspective of the speaker, a fence or wall is a “bad” thing. But the speaker is but one of the parties to the neighbourly relationship. For the speaker’s neighbour, a wall or a fence is “a protector of privacy”. Thus there are two views on walls or fences: they can be seen
negatively as obstructing good relations, or positively as dividers that secure good relations between neighbours by separating them and protecting their privacy rights. What do dividers (or barriers), physical or otherwise, have to do with law? During recent research visits to the Durban Magistrate’s Court (October 2007, February 2008) the author noted with interest that magistrates at the Durban court often had to deal with applications for binding-over orders (or “peace orders”) intended to secure the peace between neighbours. Binding-over orders can be seen as legal “fences” or “walls” established in terms of statute at the request of one of the parties where violence or threats of violence imperil the peaceful co-existence of neighbours. Section 384 of the Criminal Procedure Act 56 of 1955 – which allows for such applications – is one of only two sections of that Act that remains on the statute book. The provisions of section 384 have been called archaic and irrelevant in view of the provisions of the Domestic Violence Act of 1998 and its 1993 predecessor. Seen in this light, a reconsideration of section 384 seems redundant. But the matter is not that simple. The application of
the Domestic Violence Act requires the existence of a domestic relationship between the parties as defined in section 1 of that Act. The complainant who approaches a magistrate for a binding-over order in terms of section 384 and the person against whom the order is sought may not be in a domestic relationship as defined in the Act, thus ruling out the application of the Domestic Violence Act. Therefore, section 384 goes wider in that it aims to preserve the peace within a broader context than the Domestic Violence Act.
Consequently reconsideration thereof is warranted. In this note the author discusses the provision for binding-over orders as
set out in section 384 of the Criminal Procedure Act of 1955. In order to do so, she traces the origins thereof before considering the specific scope of section 384. In the main she analyses the constitutionality of this section in the light of relevant jurisprudence of the Constitutional Court and comparative jurisprudence of the European Court of Human Rights. She concludes with a recommendation.
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