WHAT IS DOMESTIC VIOLENCE?
Domestic violence is an ever-present issue in South Africa and one that is regrettably disguised under various other criminal conduct. These offences include acts such as physical, sexual, emotional, verbal, psychological and economic abuse, intimidation, harassment, stalking, damage to property, and so forth.
WHO ARE PROTECTED?
Complainants are protected. A complainant is any person who – is or has been in a domestic relationship and is or has been subjected to an act of domestic violence.
However, when is someone considered to be in a domestic relationship? A domestic relationship as a specific relationship between complainant and a respondent, including: married, divorced or separated couples; couples (of the same or opposite sex) living together; family members; parents of a child, and so forth.
HOW ARE COMPLAINANTS PROTECTED?
A complaint is protected in terms of the Act by means of – a protection order, and criminal prosecution of the respondent, if the latter fails to comply with the protection order.
PURPOSE OF A PROTECTION ORDER
The protection order serves the same purpose as an interdict. In general, an interdict is a legal remedy in the form of a court order which prohibits a person from violating the complainant’s rights. However, a protection order is usually faster, cheaper and easier for the complainant to obtain and to enforce than a normal interdict. Enforcement of the protection order is then done by means of criminal prosecution.
HOW TO OBTAIN A PROTECTION ORDER
Albeit of a criminal nature, the application procedure for a Protection Order is actually of a civil nature.
Step 1: Application
The procedure for obtaining a protection order starts with the application itself. The complainant may apply to the court for a protection order by completing the prescribed application form at the office of the clerk of the court. The clerk then submits the application to a magistrate.
The Act makes provision for the application to be brought on behalf of the complainant by any other person, for example a counsellor, member of the South African Police Service, social worker or teacher who has a material interest in the wellbeing of the complainant.
Step 2: Immediate protection
If immediate protection is needed, the magistrate may issue an interim protection order, which will provide emergency protection until the hearing.
Step 3: Notice served on respondent
The court must direct that a copy of the application for a protection order, as well as a notice to appear in court, be served on the respondent. The notice calls upon the respondent to show cause on the return date why a protection order should not be issued.
Step 4: Hearing
If the respondent does not appear on the day of the hearing, the magistrate must issue the protection order if there is enough evidence to show an act of domestic violence took place. If the respondent does appear on the day of the hearing, the magistrate will hear evidence from both parties. After considering all the evidence, he or she will then decide whether or not to issue a protection order.
Step 5: Court order
The magistrate may impose any reasonable conditions in the protection order for the safety or wellbeing of the complainant, such as prohibiting acts of domestic violence, prohibiting contact with a child, etc…
WHAT HAPPENS IF THE PROTECTION ORDER IS NOT COMPLIED WITH?
If the respondent does not comply with the protection order, the complainant may hand the warrant of arrest, together with an affidavit stating that the respondent has not complied, to the police. The respondent may then be arrested for committing an offence in terms of the Act.