Protection from domestic violence

Protection from domestic violence

It is well known that crime in South Africa has a detrimental impact on all aspects of society. However, the frightening extent to which domestic violence contributes to our high crime rate is often overlooked. This may be attributed to the fact that domestic violence occurs within the family context and mostly behind closed doors.

South African statistics have shown that approximately one in every four women will at some stage fall victim to domestic violence. Every eight minutes a child is abused and every 14 minutes a child gets assaulted. Although women and children are more likely to be victims of domestic violence, it is not unheard of for men to be victims as well. Domestic violence is a criminal offence that can be committed by men and women.

Most reports of domestic violence indicate victims being chronically abused rather than one time occurrences.

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 behaviour that causes harm or may have caused harm to someone’s health, safety or wellbeing.

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.

This application must be submitted at any Magistrate’s or High Court nearest to where a victim permanently or temporarily resides, carries on business or is employed.

The Application form should be accompanied by an affidavit which sets out the following:
1. The facts on which the application is based;
2. The nature of the order applied for; and
3. The name of the police station where the complainant is most likely to report the breach of the protection order.

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:
1. The grounds on which they have a material interest in the wellbeing of the victim;
2. The occupation of the other person and the capacity in which such a person is bringing the application; and
3. The written consent of the victim.

The required form should then 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. A

fter considering the facts the Magistrate may grant or refuse the issue 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 or not;
• 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.

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.

Lelanie Botha, Candidate Attorney


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