Online Protection Order Application

By Jolane van der Walt-Nieuwoudt (LLB) (LLM)

“All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so frequently goes unpunished” (S v Baloyi 86 2000 (1) BCLR 86 (CC), para 11)

In reaction to this scourge, government began steps to improve the laws regulating gender-based violence (GBV) and the procedures for obtaining protection orders. This incorporated launching the Domestic Violence Amendment Bill [B20-2020] (“the Bill”), sought to modify the Domestic Violence Act 116 of 1998 (“the Old Act”) and culminated in the promulgation of  The Domestic Violence Amendment Act 14 of 2021. The Domestic Violence Amendment Act came into effect on 14 April 2023.

The New Act introduces important amendments to the Old Act. The Act broadens the existing definition of Domestic Violence to include spiritual abuse, elder abuse, coercive and controlling behaviour.

Online Application – Section 4(5)

A significant change is that victims of domestic violence can now apply for protection orders electronically without having to go to court. The New Act provides that any complainant may, on an ex parte basis, apply to a court for a protection order. The application must be lodged with the clerk or can be submitted by sending the application to the electronic address (email address) of the court who has jurisdiction to hear the matter. Provision has been made for the clerk of the court to receive applications electronically via online portal or in person. A minor child without assistance or consent of an adult may also bring an application.

This addition is helpful in that it lines up with the standard technological push to digitised systems. More significantly, having said that, it enables sufferers of domestic violence to apply for protection orders from another location, which is particularly important where, for instance, the mobility of victims is restricted by their abuser, or where victims are otherwise restricted from departing a residence shared with the abuser. 

The Act now prescribes that the court manager will prepare a roster for clerks who will attend to applications and provide contact details that can be outside normal court hours, including weekends and public holidays. The roster will be sent to Station Commanders at local police stations and displayed on the Department of Justice website.

The supervisor on duty or court manager is responsible for contacting the Magistrate designated to consider urgent applications, which are brought after hours.

The service by the clerk may now be effected by hand, e-mail, SMS, mms or any social media, such as WhatsApp, Facebook or Twitter. If a clerk foresees any delay, then the clerk is required to approach the Magistrate for directions.

The Act also makes provision that all courts now have jurisdiction where either the complainant or respondent resides, studies, carries on business permanently or temporarily within its area. This includes the area where the cause of action arose.

A court must satisfy itself that reasonable grounds for believing that the complainant and respondent share a joint residence, and reasonable grounds exist to suspect that the respondent poses a threat to the complainant’s safety. The court may then issue a Domestic Violence Safety Monitoring Notice.

The Domestic Violence Safety Monitoring Notice directs the Station Commander where the complainant resides to direct a South African Police Service (SAPS) member to contact the complainant at regular intervals to inquire about the complainant’s well-being via electronic service at an electronic address and visit the joint residence at regular intervals and see and communicate privately with the complainant. Where a SAPS member is prevented from seeing the complainant or unable to enter the joint residence to see and communicate with the complainant in private, the SAPS may, to overcome resistance against entry, use such force as may reasonably be required.

Stricter Bail Provisions for Offences Related to Domestic Violence

Some of the foremost amendments relate to bail provisions. The granting of bail and the cancellation of bail have been further regulated and tightened to protect victims of domestic violence. Persons who are arrested for offences against a person with whom they are in a domestic relationship, or contravening a protection order where the complainant is in a domestic relationship with the arrested person, will no longer be eligible to be released on bail before his/her first appearance in court (the so-called police bail or prosecutor bail).

If the accused fails to disclose any existing protection orders against him/her during a bail application, it can lead to the refusal to grant such an application. Additionally, if the accused violates the provisions of a protection order against him while being released on bail, the bail will be cancelled, and the accused will be detained pending the finalisation of the criminal case.

Reporting of Domestic Abuse

Another noteworthy amendment in the New Act is a provision that would make it compulsory for adults who become aware that an act of domestic violence has been committed against another adult, to submit such knowledge to either a social worker or the police, failing which they will be guilty of a criminal offence. The New Act states that an adult person who:

(a) has knowledge or a reasonable belief or suspicion that an act of domestic violence has been committed against a child, a person with a disability or an older person; or

(b) has knowledge that an act of domestic violence has been committed against an adult in a domestic relationship, must report such knowledge as soon as possible to a social worker or the South African Police Service.

A person who makes the report in good faith, is not liable to civil, criminal or disciplinary action on the basis of the report, despite any law, policy or code of conduct prohibiting the disclosure of personal information; and is entitled to have his or her identity kept confidential, unless the interests of justice require otherwise. Failure to report this to a police official will result in the person being guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years.

Overall, the changes to the Domestic Violence Act help to improve protection and support to victims of domestic violence in South Africa and have strengthened the legal and social framework for addressing this pervasive problem in the country.