A claim for Emergency Monetary Relief in the Domestic Violence Court.
The Domestic Violence Act 118 of 1998 came into operation aimed at alleviating the prominence of domestic violence experienced by woman and children in South Africa. The act provides a remedy to victims of domestic violence in the form of the grant of protection orders. A complainant in terms of the Domestic Violence Act must show that he/she is in a domestic relationship with the respondent and further that an act of domestic violence has been committed by the respondent. Domestic violence is defined in the Act as: Physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the complainant’s residence without consent or any other controlling or abusive behaviour towards the complainant. This article aims to analyse the basis of a claim for emergency monetary relief in under the Domestic Violence Act.
What is economic abuse?
The Domestic Violence act defines economic abuse as including:
- An unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity including household necessities for the complainant and mortgage bond repayments or payment of rent in respect of the shared residence.
- The unreasonable disposal of household effects or other property in which the complainant has an interest.
In terms of the above definition, a complainant seeking an order for emergency monetary relief will bear the onus to prove that the respondent has unreasonably deprived him / her of financial resources and further establish grounds on which he/she is entitled to such financial resources.
Emergency Monetary Relief
A claim for emergency monetary relief is in its essence a compensatory order in that the complainant should show that he/she has suffered a monetary loss as a result of domestic violence perpetrated by the respondent including but not limited to loss of earnings or expenses occasioned by relocation or taking alternative accommodation.
Section 7(4) of the Act provides that the court may order the respondent to pay emergency monetary relief having regard to the financial needs and resources of the complainant and the respondent and such order has the effect of a civil judgement in the Magistrates court.
From the above, it is evident that a complainant cannot approach the Domestic Violence court for an order solely relating to economic abuse but must in fact show that a causal link exists between the respondent’s actions and any financial loss experienced by the complainant.
Granting of emergency monetary relief as an interim order.
Since an application for a protection order must be considered by the court expeditiously in order to protect the complainant from suffering further harm, the respondent’s right to be heard in accordance with the audi alteram partem rule is dispensed with at the time granting an interim order.
An interim order granted in terms of the Domestic Violence Act is not appealable meaning the respondent’s only recourse is to appear before the court on the return date or file a notice to anticipate in terms of section 5(5). Often, an interim order granting emergency monetary relief will prejudice the respondent in that the respondent’s respective means may have been exaggerated to the court or inadequately considered as a result of a lack of information. Since an interim protection order demands compliance from the respondent until such a time that the application is dismissed or set aside, a respondent without means to comply with an order for emergency monetary relief will inevitably find him/herself facing charges of contempt of court as a result of his/her failure to comply with the interim order.
The phrase emergency monetary relief suggests that the legislature in availing such relief to a complainant sought to protect the complainant from suffering undue economic abuse. However, the provision falls short of safeguarding the respondent’s interests from an abuse of process by malicious applicants.
Should you have any questions regarding emergency monetary relief, please do not hesitate to contact our offices and schedule an appointment to discuss the issue.