Unfortunately, the reality in South Africa is that we have a very high number of domestic violence incidents occurring every day in all spheres of our society. The Domestic Violence Act was promulgated to afford all victims of domestic violence the maximum protection from domestic abuse and to provide measures to the State to give full effect to the provisions of the Act.
To apply for a protection order in terms of the Domestic Violence Act, you have to prove that you and the respondent (the party against whom protection is sought) were involved in a domestic relationship. A domestic relationship implicates that you and the respondent are involved in one of the following ways:
- you are married,
- you are in the process of getting divorced;
- you have children together;
- you lived together,
- you were in a relationship,
- you are related to one another,
- or that you and the respondent shared a residence.
Domestic violence has various forms and can include the following: sexual abuse, physical abuse, harassment, stalking, emotional abuse, intimidation or any other abusive behaviour towards the complainant.
An act of domestic violence is defined in Section 1 of the Domestic Violence Act and is defined as any conduct that “harms or may cause imminent harm to the safety, health or wellbeing of the complainant”. A protection from domestic abuse order must relate to harm that is currently occurring or to harm that the complainant fears will occur in the future. Past abuse conduct cannot be used in support or as justification for a protection from abuse order.
Abuse may take form in any one or multiple of the following:
- Physical abuse;
- Sexual abuse;
- Emotional, verbal and psychological abuse;
- Economic abuse;
- Damage to property;
- Entry into the complainant’s residence without consent, where the parties do not share the same residence;
- Any other controlling or abusive behaviour towards a complainant.
What is the definition of physical abuse?
Any act or threatened act of physical violence towards a complainant.
What is the definition of sexual abuse?
Any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant. Lack of consent by the complainant will be an indication of sexual abuse.
What is the definition of emotional, verbal and psychological abuse?
An act of a pattern of degrading or humiliating conduct towards a complainant, which will include repeated insults, name-calling, threats to cause emotional pain or the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitutes a serious invasion of the complainant’s privacy, liberty, integrity or security.
What is the definition of economical abuse?
Economical abuse includes the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including household necessities for the complainant and mortgage bond repayments or payment of rent in respect of the shared residence. It may also include the unreasonable disposal of household effects or other property in which the complainant has an interest.
What is the definition of intimidation?
Fear is a key aspect of abuse and is generally the manner in which the Respondent controls the complainant. Intimidation, therefore, means the uttering or conveying a threat, or causing a complainant to receive a threat which induces fear. If a complainant does not fear that his/her health, safety or wellbeing is in danger, the Court will most likely not consider the act of the Respondent as domestic abuse.
What is the definition of harassment (in terms of the Domestic Violence Act)?
Harassment requires the ongoing pattern of conduct that induces the fear of harm to a complainant including repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be at a specific time, repeatedly making telephone calls or inducing another person to make telephone calls to the complainant (whether or not there is a conversation involved between the complainant and the Respondent), as well as repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant.
What is the definition of stalking?
Stalking is defined as “repeatedly following, pursuing, or confronting the complainant”.
What is the definition of damage to property?
The wilful damaging or destruction of property belonging to the complainant or which in the complainant has a vested interest.
Entry into the complainant’s residence without consent, where parties do not share the same residence:
The complainant must fear that such conduct by the Respondent, will cause him/her imminent harm. Should the complainant not believe that he/she is in danger, then the complainant should consider approaching the South African Police Services with a criminal charge of trespassing.
South Africa also provides for the application of a protection order, in terms of the Protection from Harassment Act, 17 of 2011 (hereinafter “the harassment Act”). The process to follow to obtain a protection order in terms of the harassment Act, is similar to the steps to be followed to obtain a protection order in terms of the Domestic Violence Act.
A person who falls victim to abuse and/or harassment from someone with whom he/she does not have a domestic relationship.
Anyone who does not have a domestic violence relationship will approach the harassment Court. This includes inter alia neighbours, former friends and even people who have no relationship whatsoever.
The Courts are regulated by different Acts, as described above. Both Courts have the authority to issue an interim protection order and thereafter either make a final protection order or dismiss the application. The only real difference between the respective Courts is the parties who are parties to the proceedings.
Domestic Violence and Harassment
- If you are a victim of abuse, you should approach the Domestic Violence Court, or the Harassment Court depending on your relationship with the Respondent, and apply for an interim protection order. These Courts are designed in such a manner to provide immediate protection and relief to victims who approach the Court.
- Prior to approaching the relevant Court, you need to ensure that you have sufficient documentary evidence relating to the harassment and./or abuse. If you have any proof of the abuse/harassment (WhatsApp, emails and/or messages etc.) it is important to print enough copies that prove your allegations.
- In the event that you were physically abused, you should take proper pictures of the abuse and also visit a medical doctor and request the doctor to complete a medical form that you can attach to your application (a J88 form). The more evidence you have in your possession to substantiate your version, the more likely you are to succeed.
- The first time you approach the Court, you will complete an application setting out all the details relating to the alleged abuse and/or harassment. To ensure that you obtain an interim protection order, you should be vigilant whilst drafting your application.
- It is advisable to seek legal advice, to make sure that you draft a proper application to enhance your chances for the success of obtaining an interim protection order. The onus of proof is on the complainant whilst applying, to prove that there are acts of domestic violence (when approaching the Domestic Violence Court) or acts of harassment (when approaching the Harassment Court) and that urgent protection and intervention is required.
If the Court grants the interim protection order, it means that both parties must appear in Court on the return date that reflects on the interim protection order. On the return date, you will have to provide the Court with reasons why the order should be made a final order and the Respondent will have to provide reasons why the order should not be made a final order. After the interim protection order is granted, it has to be served on the Respondent and you will be protected against the Respondent. An interim protection order shall have no force and effect until it has been served on the Respondent.
If the Court does not grant an interim protection order, the Court must direct that the application be served on the Respondent, together with a notice calling on the Respondent to show cause on the return date specified in the notice why a protection order should not be issued.
Whenever a Court grants a protection order, the Court must make an order authorising the issue of a warrant of arrest for the Respondent. This warrant will remain in force until the protection order is set aside, or it is cancelled after execution thereof by SAPS. If it appears to a member of the SAPS that there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the Respondent, the member must forthwith arrest the Respondent for allegedly committing the offence which he/she was ordered not to commit in terms of the interim protection order or final protection order.
An interim protection order must be granted by the Court if the Court is satisfied that the complainant may suffer undue hardship if not given the necessary protection immediately. The order in an interim protection order, is enforceable by the Court (the Respondent must therefore comply with the interim protection order’s terms from date on which he/she has been served with a copy of the interim protection order). The interim protection order will also indicate to the Respondent that the terms of the interim protection order will be made final on a date determined by the Court (which will also reflect on the interim protection order) in the event that the Respondent does not convince the Court on that specific day, that it should not be made final.
The return date is the date set to allow the Court an opportunity to hear the Respondent’s version of events as well as his/her argument as to why the terms of the interim protection order should not be made final. The Court may on the return date make a final order as to whether the terms of the interim protection order is final, dismissed or amended to include other terms.
Considering the application:
Your application (containing all the relevant facts and documents you rely upon) will be submitted to the Magistrate on duty and you will wait in the waiting room for the Magistrate’s decision.
As soon as the Magistrate has perused and considered your application, he/she will make an order. The Clerk of the Court will furnish you with the order as received from the Magistrate.
In the event where the Magistrate has a prima facie (on first impression) view that there are signs of domestic violence and/or harassment and that urgent protection is warranted, the Magistrate has the responsibility to issue an interim protection order.
The reason why the order is interim is since it is of such an urgent nature that the Court deems it as too urgent to first give notice to the Respondent prior to issuing the protection order. However, the party against whom the order is granted is awarded an opportunity (on the return date) to oppose the application and to submit reasons to the Court regarding why the order should not be made final.
On the return date, both parties will be entitled to provide their written reasons regarding why a final protection order should/should not be granted. Domestic violence proceedings are conducted in-camera, therefore in a closed Courtroom due to the sensitivity of the nature of the proceedings (and the fact that minor children may be involved). The Court will consider all the facts and thereafter make a suitable decision.
If the Court is convinced that a final protection order should be granted, the interim order shall merely be made a final order. Together with the final protection order, the Magistrate will also issue a warrant of arrest to enable the police to arrest the Respondent in the event of a breach of the protection order.
It is of the utmost importance to retain a copy of the proof of service (of the interim protection order and the final protection order), to enable you to make sure that the Respondent gets arrested in the event that he/she is guilty of breaching the protection order.
In the event that the Respondent breaches the protection order, you are required to contact your nearest police station. They will request a copy of the protection order as well as a copy of the return of service. To prove your allegations, you will also be required to depose an affidavit regarding the alleged breach of the Court order. When you depose to such an affidavit, make sure that you refer to the exact portions of the protection order which was breached by the Respondent. You should also be thorough and furnish the police officers with sufficient evidence substantiating the breach.
An investigating officer will then be appointed to the matter and he/she will analyse the set of facts and decide whether the matter needs to be taken further and whether the Respondent should be arrested.