Domestic Violence

1. What is domestic violence?

Domestic violence may be defined as any form of abuse which includes physical, sexual, emotional, psychological or economic harassment; damage to someone else’s property; stalking; entry into someone’s property without consent, where the parties do not share the same residence; or any controlling or abusive behavior that causes harm or may have caused harm to someone’s health, safety or wellbeing. Domestic Violence is regulated by the Domestic Violence Act and this act applies to domestic violence that takes place in a domestic relationship.

2. What is a domestic relationship?

You can have a domestic relationship with someone you are or were married to, your parents or guardian, any family member(s) including your own child(ren), anyone you have lived with, whether you were married to that person or not, your life partner of the same sex, someone you went out with (even for a short time) or had sex with or someone with whom you share a child.

3. What can a victim of domestic violence do to protect him or herself?

He or she can apply for an interim protection order by completing the prescribed application form at any Magistrate’s Court nearest to where he or she permanently or temporarily resides, carries on business or is employed. The order can be obtained at any time, during or outside normal court hours, public holidays and over weekends. The court has a discretion to grant an interim protection order and in the event where the court refuse to grant an interim order the respondent will be called to court to give reasons why a final order should not be granted.

4. What do I need to apply for a protection order?

The prescribed application form (which will be available at the said courts) should be accompanied by an affidavit which sets out the facts on which the application is based, the nature of the order applied for and the name of the police station where the complainant is most likely to report the breach of the protection order.

5. Can I apply for a protection order on behalf of another person?

In addition to the complainant, the application may be submitted by an unassisted minor or any person on behalf of another, provided that they have an interest in the life of the victim. A counselor, health worker, policeman, social worker or teacher may with the written consent of a victim apply for a protection order; unless the complainant is a minor, mentally retarded or unconscious person or the court is satisfied that he or she is unable to give the required consent. In such cases, however, additional information must be disclosed in the affidavit being the grounds on which they have a material interest in the wellbeing of the victim, the occupation of the other person and the capacity in which such a person is bringing the application and the written consent of the victim.

6. What happens after I have submitted the application form?

The application form should be submitted to the clerk of the court, whereafter the clerk will send the application to the magistrate who will set a date for the victim to return to court. On this date the magistrate will consider the application, prepare a notice to inform the abuser of the interim protection order against him or her and specify a date on which he/she is to attend court. On such date the abuser may show cause as to why the interim protection order should not be issued. The complainant/ applicant needs to prove, on a balance of probabilities, that the respondent has committed an act of domestic violence. After considering the facts the Magistrate may grant or refuse the issue of the protection order.

7. What is the purpose of the protection order?

The purpose of the protection order is to prevent the abuser from committing an act of domestic violence or enlisting another person to help him commit such an act, entering or remaining in the residence of the complainant or any part thereof, whether they shared the place of residence, entering the complainant’s place of employment and committing any other act as specified in the protection order.
The court may also impose additional conditions it deems reasonably necessary to protect and provide for the safety, health or well-being of the complainant.
Upon issuing a protection order, the court must also make an order authorising the issue of a warrant for the arrest of the respondent. The execution of this warrant will be suspended subject to the compliance with any prohibition, condition, obligation or order imposed by the court. The warrant will remain in force until such time as the protection order is set aside or cancelled after execution.

8. Who may be present at domestic violence hearings?

The only persons permitted to be present during any domestic violence proceedings are officers of the court, the parties to the proceedings, any person bringing an application on behalf of the complainant, any legal representative representing any party to the proceedings, witnesses, a maximum of three persons for the purpose of providing support to the complainant or the respondent during the proceedings and any other person whom the court permits to be present.
No information which might in any manner reveal the identity of any party to the proceedings directly or indirectly may be published.

9. What can I do if an abuser disobeys a protection order?

Phone the South African Police Service. Thereafter a statement will be taken from you. Provide the police with the warrant of arrest you received together with the protection order (if you have lost it, apply at the court for another one). If you are in immediate danger the abuser will be arrested, otherwise the abuser will be given a notice to appear in court the next day.