Domestic violence in its various forms has always been a problem of epic proportions and even more so in a time where the COVID-19 Coronavirus has forced people worldwide to stay at home. In South Africa, when the president declared a National State of Disaster and ordered the country to lockdown, there was a predicted increase in domestic violence which was confirmed in Die Burger.1
In an attempt to provide a solution for domestic violence, the Domestic Violence Act 116 of 1998 (hereinafter “DVA”) was enacted to allow victims to obtain protection in the form of an interdict or protection order issued by the courts.
How does it work?
A domestic violence protection order can be applied for and obtained at your nearest magistrate`s court. The court might issue an interim order that takes effect as soon as the person who committed the acts of domestic violence (hereinafter the “respondent”) has received the order by means of service in the prescribed manner. Generally, the court would make prohibitive orders that the respondent must obey, for example, not to verbally abuse the complainant by swearing at him/her or using degrading language. In the instance that the respondent is contravening the order, the complainant may lodge a criminal case at his/her nearest South African Police Service (SAPS) station.
Who can apply?
Anyone who is a victim of domestic violence may apply for a protection order in terms of the DVA. The definition of a domestic relationship includes inter alia people who have shared or recently shared a residence, who are or were married, life partners, parents, family members and people in an actual or perceived romantic relationship of any duration.
In which instance can you apply?
Domestic violence in terms of the DVA include physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the 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 is important to make an application to the court for the protection order immediately, or as soon as possible after the last incident.
How can you apply?
Victims of domestic violence can apply for a protection order in terms of the DVA at their nearest magistrate`s court or by approaching a legal representative. Your application would generally consist of an application form that consists of the parties’ details and a statement in which you set out all the facts and former acts of domestic violence, specifically containing information about the abuse that took place and the urgency of the matter.
Upon the submission of your application to the court, the presiding officer will consider your application including the facts of the matter as alleged in the statement. The court might issue an interim protection order and allocate a return date to allow the respondent to provide reasons why the court should not confirm the interim order. In addition to the interim order, the court will issue a warrant of arrest to be used by the victim when the order is contravened.
The interim order must be served on the respondent by a member of the police, the sheriff of the court or any other prescribed person and takes effect upon service. On the return date and upon satisfaction of the court that the interim order was properly served on the respondent and that he/she has committed or is committing domestic violence, the court must issue a final protection order. The final protection order does not expire and is valid until one of the parties passes away or an application for rescission is granted by the same court.
It is worthy to note that when acts of domestic violence consist of criminal acts such as assault or crimen injuria, victims have the option to lodge a criminal complaint with SAPS in addition to applying for a protection order to prevent the abuse from continuing.
It is distinctly possible that the protection order in terms of the DVA is the most important legal recourse in the fight against domestic violence. Do not ignore, accept or endure domestic violence. Speak up, seek help and apply for your protection order.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)