Domestic violence - not to be underestimated

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Due to the intimate nature of domestic relationships, the most vulnerable members of society (women and children) are predominantly the victims of domestic violence and unfortunately domestic violence goes mostly unreported. There are multiple reasons for this including (but not limited) to fear and shame. In a 2013 survey, 50% of the female participants indicated that they had suffered form emotional and verbal abuse and almost 46% of the women who were in violent relationships indicated that they were injured. In 2015 the statistics on female murders showed that half of it occurred as a result of domestic violence. When regard is to be had for the psychological impact of domestic violence, this evil will most likely perpetuate. For this reason, the Domestic Violence Act (Act 116 of 1998) together with its Regulations where called into life, placing a duty on the state to act in this regard wherefore we now have district courts specifically tasked to urgently consider all applications for protection orders.

The Domestic Violence Act defines the following acts of domestic violence:

Physical abuse – if the complainant is being physically injured by the respondent, for example, being punched, kicked or pushed.

Sexual abuse– if the complainant is being forced by the respondent to perform a sexual act, for example, the respondent may force the complainant to have sexual intercourse with him/her.

Emotional and psychological abuse– if the respondent verbally insults or humiliates the complainant, for example, calling him/her offensive names.

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.

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.

Property damages – if the respondent damages any property that belongs to the complainant.

Trespassing– if the respondent enters the complainant’s home or property without his/her consent.

A complainant can approach either the Police or the closest court to apply for a protection order. The complainant will also be informed that they can also lay a criminal charge against the respondent at a police station.

Any victim of domestic abuse can apply for a protection order, even if they are minors, in which case they do not have to be assisted by a parent or a guardian. Furthermore, any person who has an interest in the wellbeing and safety of the victim can make an application if the victim is under the age of 18 years.

Follow the link below for the application for a protection order form. An affidavit made by the complainant (victim) should accompany the form and must contain the following information:

  • the facts relating to the domestic violence and any evidence in support thereof, for example, the type of domestic violence, when it happened and medical reports;
  • the type of protection that is applied for, for example, that the respondent should stop abusing the complainant; and
  • the name of the police station where any breach of the protection order will most likely be reported to.

After an application for a protection order has been submitted to the clerk of the court, the clerk will take it to a magistrate. If the complainant needs urgent protection against the respondent (i.e. where his/her life is in danger) the magistrate MUST issue an interim protection order.

Follow the link below for a guide on how to apply for a protection order and the steps of the process.

If the court grants an interim or final protection order, a warrant of arrest will also be issued and provided to the complainant. If the respondent breaches the terms and conditions set out in the protection order, the complainant must report the breach to the police and the respondent can be arrested in terms of the warrant of arrest.

A protection order aims at preventing the reoccurrence of domestic violence by stating what conductthe respondent must refrain from doing. As long asthe respondent complies with the protection order, the complainant will be safe. If the respondent contravenes any stipulation of the protection order, he/she may be arrested. Once a protection order is granted, it is enforceable throughout the country at all hours.

If the respondent disobeys the protection order, it must be reported to the police immediately with the copy of the protection order so that the respondent can be arrested and be brought before court. Only the Magistrate may release the arrested person. a

Links to:

Domestic Violence Act

Regulations

Application Form for Protection Order

Guidelines in completing Application Form

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My name is Tineke van Rooyen and I practice as an attorney in Jeffreys Bay, thereby servicing the greater Kouga District.

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