Domestic Violence

DOMESTIC VIOLENCE: PROTECT YOURSELF AND YOUR LOVED ONES

By 12/06/2014 No Comments

Everyday thousands of men, women and children are subjected to abuse in domestic relationships and most feel that there is no way to get out of the situation or protect themselves. Thankfully Nelson Mandela’s government realized the need to provide proper mechanisms to afford people protection and promulgated the Domestic Violence Act (“the Act”) in 1998.

WHAT IS DOMESTIC VIOLENCE:

The purpose of the Act is to afford victims of Domestic Violence the ability to obtain protection from courts and the law. This protection is achieved in the form of issued protection orders which can be applied for by any person who has been subjected to an act of domestic violence, or by a person acting on behalf of someone who has been subjected to an act of domestic violence.

Domestic violence itself is given a broad definition in the act and includes acts of:
Physical abuse;
Sexual abuse;
Emotional, verbal and psychological abuse;
Economic abuse;
Harassment;
Stalking;
Damage of property;
entry into person’s residence without consent, where parties do not live together; and
Any other controlling or abusive behavior towards a person which causes or may cause harm to the person’s safety, health or well-being.

The Act goes further to define each of the forms of domestic violence. As there are numerous and lengthy definitions only those definitions that the writer feels are important are contained in this article, namely:
“PHYSICAL ABUSE”- means any act or threatened act of physical violence towards a person.

“SEXUAL ABUSE”- means any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of a person.

“EMOTIONAL , VERBAL AND PSYCHOLOGICAL ABUSE”- means a pattern of degrading or humiliating conduct towards a person, including repeated insults, ridicule or name calling, repeated threats to cause emotional pain, or the repeated exhibition of obsessive possessiveness or jealousy.

“ECONOMIC ABUSE”- means the unreasonable deprivation of economic or financial resources which a person requires out of necessity, including household necessities, mortgage bond repayments and/or rental payments.

As stated above, person can apply for a protection order if they or someone they know has been subjected to an act of domestic violence in a domestic relationship. For purposes of the Act a domestic relationship is one where a person and a respondent are married to each other, live or lived together in a relationship having the nature of a marriage, are the parents of a minor child, are persons who have or had parental responsibilities for a minor child, are family members related by consanguinity, affinity or adoption, are or were in a personal and intimate relationship, share or have recently shared the same residence.

THE PROCESS:

An application for a protection order must be brought in the prescribed format in the Magistrate’s Court in the area where the person who has been subjected to the act of domestic violence resides. It is very important that the application should, as for as possible, record any and all information related to the act of domestic violence.

Upon receipt of an application in the prescribed manner the clerk of the court will immediately submit the application to the court for consideration. If the court is satisfied that the application demonstrates a prima facie (based on an initial impression) case that domestic violence is or has been occurring, the court will immediately grant an Interim Protection Order to protect that person.

Once the court has considered the application a notice, calling on the Respondent to appear at court on a certain date and to show cause why a final protection order should not be granted, must be served on the Respondent, together with any Interim Protection Order that may have been granted by the court. If a Respondent, upon receiving a notice, wants to have the matter dealt with sooner he/she can approach the court and request the matter to be dealt with on an earlier date.

On the return date the court will consider any and all evidence the court, in its discretion, feels necessary and relevant to determine whether a Final Protection order should be granted and will render a decision as quickly as possible.

Once an Interim or Final Protection Order has been granted it operates as a court order and sets out limitations and requirements that are put in place by the court to protect a person from further acts of domestic violence.

WARRANT OF ARREST:

A warrant of arrest is simultaneously issued with a Final Protection Order as a precautionary measure. The warrant remains in the court file and cannot be executed (stayed) until the court orders otherwise.

In the event that a Respondent breaks or breaches any of the limitations, requirements and/or terms of Protection Order, in any way whatsoever, the Respondent would be acting in contravention of a court order and can be arrested for such conduct. This is done by informing the court of the contravention and requesting the court to release the warrant of arrest for execution. If more than 1(one) contravention occurs, further warrants of arrest can be applied for and issued by the court to ensure the protection of a person and the compliance with the Protection Order.

CONCLUSION:

It has been said that domestic violence is not only the abuse of an individual but the destruction and deterioration of family values and social justice. Bearing in mind that South Africa is known for having some of the highest statistics in respect of domestic violence and gender-based violence, it is imperative that people know the protection measures available to combat this growing plague that is growing rife within our democracy.

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.