What is domestic violence?
Domestic violence is defined broadly in South Africa to incorporate a wide range domestic relationships. It occurs when a person – the complainant – is harmed or being harmed by another person – the respondent – while they are in a domestic relationship.
The Domestic Violence Act, 116 of 1998 ("the Act") – a relatively progressive piece of legislation in comparison to its international counterparts – defines forms of domestic violence as any physical, sexual, emotional, verbal and psychological abuse, economic or financial abuse, intimidation, harassment, stalking, damage to property, entry into a complainant’s residence without consent, where the parties do not share the same residence, or any other controlling or abusive behaviour towards a complainant.
It further defines a domestic relationship as any relationship where the complainant and respondent:
are or were married to one another in terms of any law, custom or religion;
are living or have lived together in a long-term relationship;
are the parents of a child have a parental responsibility for that child (whether or not at the same time);
are family members related by blood, marriage or adoption;
are or were engaged to one another, dating or in a customary relationship; or
share or recently shared the same residence.
Who can apply for a Protection Order?
In terms of section 4 of the Act, any person who is or has been in a domestic relationship with the respondent and has been subjected to an act of domestic violence may apply for a Protection Order. An application may also be made on behalf of the complainant by any other person who has a material interest in the complainant’s wellbeing. However, such an application must be brought with the complainant’s written consent except under certain circumstances, like when the complainant is a child, for example. That said, a child or anyone acting on behalf of the child, may apply to a court for a protection order without any assistance from the child’s parent or guardian.
How to apply for a Protection Order
An application for a Protection Order can be made at a Magistrates’ Court in the area where the complainant lives or works, the respondent lives or works or where the abuse took place. The application must be accompanied by a statement, or affidavit, certified before a commissioner of oaths stating that the applicant / complainant knows and understands everything written in the application. The application will further set out the following information:
the facts relating to the abuse;
the nature and type of protection the applicant / complainant seeks; and
the name of the police station where any breach of the Protection Order is likely to be reported.
Once an application has been certified, a clerk of the court will fill out a form for an interim Protection Order and take the application forms to a Magistrate. The Magistrate considers the application and either:
Dismisses the application if there is no evidence thereof;
Grants an interim Protection Order, with a return date for hearing; or
Postpones the matter, without granting an interim Protection Order, wherein a return date will be recorded and the respondent will be given an opportunity to state his defence (if any), and once the Magistrate has heard both parties versions, the Magistrate will either grant a final Protection Order or dismiss the application for a Protection Order.
An interim Protection Order – which is a temporary order – only comes into effect once it is served on the respondent (the person who is alleged to have abused the complainant). If the respondent breaches an interim Protection Order that was duly served on him/her, he/she may be arrested.
To make an interim Protection Order final, the complainant and respondent must appear in court for a hearing. The court will consider all evidence placed before it and make a decision.
A final Protection Order remains valid and binding against the respondent until it is set aside by a court.
The Women's Funding Network has recently developed a #SignalForHelp campaign and released a universal signal for help specifically regarding domestic violence. This has been created with the specific purpose of helping victims of domestic violence during the lockdown period, when they are unable to leave their homes.
Should you require any further guidance on your rights in respect of Protection Orders, contact us at 010 109 1055 or email michelle@kernattorneys.co.za.