By Jolané van der Walt
Despite these fearful times, South Africa celebrates Human Rights Day on the 21st of March. A celebration, however, would entail that everyone, at the very least, knows of and knows how to enforce the most basic rights afforded by the Constitution. Especially the rights that are very close to home, such as the right to life, equality, human dignity and freedom and security of the person.
What is domestic violence?
Domestic violence is the most common and pervasive form of human rights violations in South Africa. Woman (and men) are murdered, threatened, physically and sexually assaulted by either their partner and/ or family members on a daily basis, within the safety of their own homes.
It is crucial that you are completely empowered by being informed of what your options are when one or more of your rights are violated. In terms of the Domestic Violence Act (116 of 1998), you have the right to apply for a protection order against your partner or spouse, who abuses you – whether it be physical, emotional or even economical abuse.
What is a protection order?
A protection order (also called a restraining order or domestic violence interdict) is a court order that orders an abuser to stop the abuse and sets conditions to prevent the abuser from harassing or abusing you again. The protection order may also prevent the abuser from obtaining assistance from any other third party to commit abusive acts against you.
How do I apply for a protection order?
You can apply at court on any day of the week, but for after-hour applications one must go to the nearest police station and the police will then contact a magistrate or clerk of the court. The process for applying for a protection order does not involve any costs, unless an attorney is used.
The magistrate will first grant an interim protection order and the abuser (Respondent) will be given a date to appear in court to give reasons why the order should not be made final.
When the court grants an interim protection order, it simultaneously issues a warrant of arrest against the respondent. The warrant of arrest is suspended subject to compliance with any condition, prohibition or obligation in terms of the interim protection order. Breaching any of the conditions set out in the order can result in the respondent receiving either a fine or a prison sentence, or both.
The purpose of the Domestic Violence Act is to afford you the maximum protection from domestic abuse that the law can provide, especially having regard to the Constitution of South Africa, and in particular, the right to equality and to freedom and security of the person.
What about criminal charges?
You also have the right to bring a criminal charge against your abuser/s in addition to obtaining a protection order if the act of domestic violence contained an element of violence, because this is then a criminal offence. You may also get a court order to have the perpetrator’s gun removed, if applicable.
Human rights violation
Domestic violence is a human rights violation. While domestic violence is often treated as a private matter, the human rights framework provides a tool to challenge this perception and reframe it as a collective problem. One that society as a whole must address and recognise as a serious social evil, against the most vulnerable members of society.
Legal Hero Policyholders, please contact our offices for assistance with any questions you may have in respect of obtaining a protection order against a partner or spouse.
Jolané van der Walt (LLB) (LLM) from Legal Hero