Domestic violence is a sad reality for many families in South Africa.
Domestic violence is where a person (“the complainant”) is being harmed by another person (“the respondent”) while they are in a domestic relationship.
The complainant and the respondent will be considered to be in a domestic relationship if they are:
• married to each other according to any law, custom or religion;
• living together in a long-term relationship without being married (cohabitation);
• parents of a child;
• family members by blood, marriage or adoption;
• dating each other or engaged to each other; or
• staying together in the same home.
Before we look at the remedies available and what steps you should take to protect yourself, your children or a loved one, we should first look at what the law regards as domestic violence in terms of the Domestic Violence Act 116 of 1998.
Types of Domestic Violence and Abuse
There are various forms of domestic violence and abuse:
1. Physical abuse – if the complainant is being injured by the respondent, for example, being punched, kicked or pushed.
2. Sexual abuse – if the complainant is being forced by the respondent to perform a sexual act, for example, rape.
3. Emotional and psychological abuse – if the respondent verbally insults or humiliates the complainant, for example, calling him/her names.
4. Economic abuse – if the complainant suffers financial damages caused by the respondent, for example, where the respondent sells household property or uses a joint bank account for personal use without the consent of the complainant.
5. Intimidation, harassment or stalking – if the respondent repeatedly follows and watches the complainant, or where the respondent makes unwanted telephone calls or sends unwanted e-mails and text messages to the complainant.
6. Property damage – if the respondent damages any property that belongs to the complainant.
7. Trespassing – if the respondent enters the complainant’s home or property without his/her consent.
If you have been subject to any of the aforementioned types of abuse the appropriate remedy would be an interim protection order.
How does one obtain a protection order?
The complainant will have to apply for an interim protection order at the Magistrate’s Court in the area where they or the applicant reside or where the abuse took place.
The application will be in the form of an Affidavit outlining:
• The facts on which the application is based;
• The nature of the order sought;
• The name of the police station where you are likely to report any breach of the order.
The clerk of the court will then stamp your application form, open a file for you and will put your papers in your file.
The file will then be handed to the Magistrate to read who will then either:
• Dismiss your application if there is no evidence that domestic violence is taking place; or
• Grant an interim protection order; or
• Postpone the matter without granting the interim protection order
Interim Protection Order
Once the interim protection order has been granted, the clerk of the court will give you a return date, when you have to go back to court, and a case number.
The Magistrate will then issue a notice to appear in court and the respondent is informed that an application for an interim protection order was granted and that he/she must appear on the return date to give their side of the story.
Either the Police or the Sheriff of the Court will then serve the interim protection order on the respondent.
It is important to note that when the Police serves the order it is done at no charge but when the Sheriff of the Court serves the order, you will be be liable for their costs.
An interim protection order has no force and effect until it has been served on the respondent.
If the respondent does not appear on the return date, the interim protection order will be made final.
If the respondent does appear, the court will hear evidence from you, the respondent and any other witnesses and will then after considering all the evidence, make a decision.
How can the order be enforced?
If the court grants an interim/final protection order, a warrant of arrest will also be issued and provided to the complainant.
If the respondent then breaches any of the terms and conditions of the protection order, the complainant must report the breach to the Police and the respondent can then be arrested in terms of the warrant.
How can the order be cancelled or changed?
Either party can apply to Court to cancel/change the order upon providing good reasons therefor.
Written notice of such application must be given to the Court and the other person.
If you are the victim of domestic violence or abuse, please contact Greyvensteins Inc so that we may assist you in protecting yourself and your loved ones.