Domestic violence is a serious social evil with the power to break down marriages, relationships and even people. The sad truth is that domestic violence is more common than we think.
According to Women in Action, 1 out of every four South African women are survivors of domestic violence and 60 % of all cases of abuse are committed by partners, lovers or spouses.
For some victims, separation and divorce might be the best way out of this toxic, abusive environment; others might have to rely on the protection described in the Domestic Violence Act 116 of 1998.
What is Domestic Violence?
Domestic violence is when one person abuses another person with whom he/she is in a domestic relationship. The Respondent’s actions harm or may harm the safety, health or wellbeing of the victim.
In domestic violence cases the victim (the one who applies for a protection order) will usually be called “the Complainant”. The abuser will be called “the Respondent”.
What is a Domestic Relationship?
For abuse to fall within the scope of the relevant Act, there must be a domestic relationship between the Respondent and the Complainant in any of the following ways:
- if the Respondent and Complainant are/were married to each other,
- if they live/lived together in a relationship in the nature of marriage, but are/were not married,
- if they are the parents of a child or if they are the persons who have/had parental responsibilities of that child,
- if they are family members related by consanguinity, affinity or adoption,
- if they are/were engaged, dating or in a customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration, or
- if they share or recently shared the same residence.
Examples of domestic relationships (in plain language):
- married couple,
- engaged couple,
- boyfriend-girlfriend relationship,
- family relationships such as uncle-niece, aunt-niece, brother-sister, grandfather-grandchild, stepfather-stepchild relationships,
- a couple who lives together as a married couple and
- parents of a child.
Forms of Domestic Violence
The Domestic Violence Act lists the following forms of domestic violence:
- 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, or
- Any other controlling or abusive behaviour towards a Complainant.
How to apply for a domestic violence interdict/Protection Order
STEP 1: APPLICATION FOR A PROTECTION ORDER
Go to the Police station or the Magistrate/Domestic Violence Court in your area and make an affidavit and complete the required application form for a protection order. Download the form here. You can also obtain a copy of the form at the police station or the Domestic Violence Court. Before you complete the required form read the Notice to Complainant in the case of Domestic Violence. Download the Notice here. This Notice explains your rights and the steps you may take to protect yourself, your children and other members of the shared household. You may attach any evidence, like photos or supporting affidavits by others to your application. An application for a protection order can be brought anytime, even outside of office hours and court days.
IMPORTANT NOTE: If the Respondent has guns in the house it is important to note this in your application and to ask that they be removed from the Respondent’s custody. You can also ask the court to restrict the Respondent from entering the home or certain parts of the home.
STEP 2: ISSUE OF THE INTERIM PROTECTION ORDER
You need to take your completed application form to your nearest Magistrate’s Court/Domestic Violence Court – it will be considered immediately by the Magistrate. If the Magistrate is satisfied that the Respondent has committed acts of domestic violence against you or against someone whose wellbeing you have an interest in, then the court will issue an Interim Protection Order against the Respondent.
IMPORTANT NOTE: An application for a protection order may also be brought on behalf of the complainant by any other person who has an interest in the well-being of the complainant. This includes an application by a counsellor, a health service provider, a social worker, a teacher or a member of the SAPS. You can also apply for a protection order on behalf of someone else whose wellbeing you have an interest in, like a child or a parent.
STEP 3: SERVICE OF THE INTERIM PROTECTION ORDER ON THE RESPONDENT
Once the Interim Protection Order has been issued take it, together with a copy thereof, to the Police Station nearest to where the Respondent resides and ask them to serve the Respondent with the Interim Protection Order. Proof of service is filed on the court file to prove service of the interim protection order on the Respondent. However, it is a good idea to take the details of the SAPS officer who you handed your documents so that you can follow up and make sure that the Respondent was served, and that proof of service is available for the court should service be disputed later.
IMPORTANT NOTE: The interim protection order has no force or effect until it has been served on the Respondent, so make sure the Respondent was served!
STEP 4: THE RETURN DATE (THE HEARING DATE)
The purpose of the interim protection order is exactly what the name says – it provides the Complainant with interim protection against the Respondent until the return date (the date on which the applicant and the respondent, after being given due notice, are to appear before the court to have the protection order made a final order or not). The return date will be in the interim protection order document so make sure you keep note of this date. On the return date, the Court will hear from the Respondent and the Respondent should give the court valid reasons why the protection order should not be made final/permanent. If the Respondent does not appear in court on the return date, but the court is satisfied that proper notice has been given to the Respondent, and the Court is satisfied based on the evidence before it that the Respondent has committed or is committing an act of domestic violence/sexual harassment against you, the court may make a final order on the return date.
IMPORTANT NOTE: You must show up on the Return Date. If you are absent from the proceedings your application will most likely be dismissed in totality!
The court is also required to issue a suspended warrant of arrest for the Respondent when issuing the protection order (interim or final). Should the Respondent breach any of the terms of the protection order you need to report the breach to the Police immediately and make a statement. The Respondent will be arrested immediately and it will now be a criminal case. Remember, if you don’t report breaches of the protection order to the Police then your protection order (whether interim or final) is just a piece of paper. A protection order can only protect you if you use it for the purpose it was intended for.
Also remember that when you initially go and apply for a protection order you may also lay criminal charges against the Respondent for acts of domestic violence (assault/sexual assault, etc.) already committed against you.
Need more information?
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“A house where a woman (or a man) is not safe, is not a home.” (Unknown)
Nazli Williams attorney at iedivorce, director of Patton Williams Attorneys and co-author of What You Should Know Before Filing For Divorce (2020 edition), is an admitted attorney of the High Court of South Africa, specializing in Divorce and Family Law matters. Her fields of expertise and interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, guiding good people in plain language and with great technology, to achieve remarkable results.