Domestic Violence – Your questions answered
Domestic violence interdicts are arguably one of the most misunderstood processes in South African family law. I have, in my practice, seen many eager litigants end up floundering in the Magistrate’s Court as a result of protection order applications that have gone awry.
Nevertheless, if used correctly, domestic violence interdicts are a very strong and speedy method of getting relief. The proviso, however, is that the application should be well thought through, should not be frivolous or petty, and that the application is dealt with properly from day one.
In this article I will be looking at domestic violence interdicts in general, as well as the process, common pitfalls, and risks associated with domestic violence interdicts.
The Governing Legislation
Domestic violence interdicts are regulated by the Domestic Violence Act 116 of 1998. A copy of the act, as it stands at date of writing, can be found here.
The act sets out in very broad terms the powers of a magistrate when it comes to an application for a protection order to be granted. The act also sets out the process which needs to be followed, the facts that need to be proven, and the various orders which may be put forward by the court.
Who may apply for a protection order?
In terms of the domestic violence act, a person may apply for a protection order against another person provided that they are in a domestic relationship. To fully understand this, one must look at the definition of a domestic relationship as it is interpreted in the act.
Persons are deemed to be in a domestic relationship if:
- they are lawfully married to each other;
- they live or have lived together in a relationship in the nature of marriage although they are not, or were not married;
- they are the parents of a child, or have or had parental responsibility for that child;
- they are family members related by consanguinity, affinity or adoption;
- they share or recently shared the same residence
This means that only a select group of people, within a select set of circumstances, is entitled to apply for a protection order in terms of the domestic violence act. Persons who are not eligible to apply for a protection order in terms of the domestic violence act may always attempt to seek relief in terms of the harassment act.
What constitutes domestic violence?
Domestic violence takes on many different forms, and it is very important to understand the difference between the various types of domestic violence.
The following illustrates the different types of domestic violence, as well as their definition in terms of the domestic violence act:
|Physical Abuse||Any Act or Threatened Act of Physical Violence against a Complainant|
|Sexual abuse||Any conduct that abuses, humiliates, degrades, or otherwise violates the sexual integrity of the complainant|
|Emotional, verbal and psychological abuse||A pattern of degrading or humiliating conduct towards a complainant, which includes:|
· repeated insults, ridicule or name-calling;
· repeated threats to cause emotional pain;
· the repeated exhibition of obsessive possessiveness and jealousy, such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity, or security
|Economic abuse||The unreasonable deprivation of economic or financial resources to which a complainant is entitled, which the complainant requires out of necessity, or the unreasonable disposal of household effects or other property in which the complainant has an interest|
|Intimidation||Uttering or conveying threats, or causing a complainant to receive a threat, which induces fear|
|Harassment||Engaging in a pattern of conduct that induces fear of harm to a complainant. This includes:|
· repeatedly watching, or loitering outside or near the building or place where the complainant resides, works, conducts business, studies or happens to be
· repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues
· repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant
|Stalking||Repeatedly following, pursuing, or accosting the complainant|
|Damage to property||The willful damaging or destruction of property belonging to a complainant or in which the complainant has a vested interest|
|Entry into the complainant’s residence without consent, where the parties do not share the same residence||No definition contained in act|
|Any other controlling or abusive behaviour towards a complainant||No definition contained in act|
How does one go about getting a protection order?
To apply for a protection order, a complainant must complete an application form which may be found here.
In the protection order application form, the complainant will provide all of the details related to the acts of domestic violence which he or she is currently experiencing, together with all supporting documents.
This application form is then presented to the registrar of the Magistrate’s Court, and more particularly the Domestic Violence Court, after which a case number is allocated. From there, the file is presented to a magistrate who will then consider the validity of the complaint and issue an appropriate order.
If the application is granted, a protection order is issued immediately, and the respondent (i.e. the person who is guilty of committing acts of domestic violence) is interdicted from committing any further acts of domestic violence. A return date is issued, on which both parties have to return to court. On this date both the complainant and respondent are to appear before the magistrate, providing the respondent an opportunity to respond to the allegations made against him/her.
If the court is satisfied with the version of the respondent, the interim protection order may be set aside. However, if the court favours the version of the applicant, the interim protection order will be made a final protection order.
It is important to bear in mind, however, that the presiding magistrate on the first application date is not bound to issuing a protection order. For example, if the magistrate is of the view that the applicant did not present enough evidence, the magistrate may issue a notice to the respondent to appear in court on a particular date and explain why a protection order should not be issued. This means that the applicant will not have any interim protection until such a time as the matter is heard.
Some of the powers of a magistrate in domestic violence proceedings:
Magistrates have a fairly wide discretion when hearing domestic violence applications, but this discretion is firmly rooted within the boundaries of the domestic violence act.
Here are some of the orders which a magistrate may issue in a domestic violence application:
- that the respondent be ordered not to commit any acts of domestic violence against the complainant;
- that the respondent be ordered not to entice another person to commit an act of domestic violence against the complainant;
- that the respondent be denied access to a minor child, or the minor children, born of the relationship between the complainant and the respondent;
- that the respondent be denied access to the complainant’s residence;
- that the respondent be denied access to a specific part of the shared residence in the event of the parties still living together;
- that the South African police services be authorised to confiscate specified weapons which may be in the possession of the respondent.
Mistakes commonly made in domestic violence proceedings:
|Failure to plan||In their rush to get a protection order, complainants often neglect to formulate their case properly. This is very problematic in the event of a respondent coming back in response to the 1st version which was advanced by the complainant. It is extremely difficult, and often fatal to one’s case, to change a version once it has been provided on affidavit.|
|The Domestic Violence Court is utilized as a weapon of perceived retribution||Unfortunately, the Domestic Violence Court lends itself to abuse by virtue of the fact that the court can be approached without the respondent being aware of the application. The first notice that the respondent would have of the application is when notice is delivered to him/her after the application has already been considered by the court. This means that many unscrupulous litigants will approach the court on questionable merits in order to be one up on their domestic partner.|
|Failure to use an attorney||Because it is so easy to approach the domestic violence court on an application form, many people approach the court on their own in circumstances where they would have been wise approach an attorney for advice on legal procedures. Where serious accusations are made and where children are involved, it is generally prudent to seek legal advice. Although the initial order may be granted, these types of applicants frequently experience great difficulty when the time comes for the respondent to state his/her case.|
|The domestic violence court is used where other courts and other processes would be more appropriate||Owing to the relative ease and speed involved in approaching the domestic violence court, one may be tempted to approach the domestic violence court instead of, for example a children’s court. The courts do not look favourably upon this type of behaviour.|
|Failure to understand that domestic violence is more than just physical abuse||Unfortunately, many people go through years of trauma and abuse before taking legal advice. In fact, I have in my practice come across many people who would have been entitled to domestic violence interdicts much earlier, had they only taken the time to learn their rights and to comprehend what kind of behaviour constitutes domestic violence.|
Frequently asked questions:
What can you do if a respondent breaches the terms of a domestic violence interdict?
Approach the South African police services immediately. When a domestic violence interdict is issued, a warrant for the arrest of the respondent is issued simultaneously, but held over subject to compliance by the respondent of the order. In other words, if the respondent breaches the terms of the order, he or she may be arrested
Frequently asked questions in domestic violence proceedings:
I have been served with a domestic violence interdict, and I do not believe it is fair. What can I do?
The domestic violence act makes provision for respondents to have the matter set down for reconsideration by the court on 48 hours’ notice to the applicant or their attorney.
Can I recover my legal costs from an applicant if they obtain a protection order against me and I am forced to go to court?
Yes, but only if the application was frivolous, vexatious, or unreasonable.
How does the court judge domestic violence proceedings?
Generally domestic violence proceedings are dealt with on affidavit, but the court is obliged to hear oral testimony on the return date.
Do I have to get an attorney to apply for a domestic violence interdict on my behalf?
No. A protection order may be applied for by simply filling in the relevant application form. It is, however, advisable to at obtain legal advice when it comes to domestic violence proceedings, as these proceedings may become very technical because of the fact that the initial application is brought ex parte (that means without the knowledge of the respondent).
My significant other is abusing my children who are too young to apply for a protection order on their own. Is there any way that I may protect my children?
Yes, the domestic violence act makes provision for an application to be brought on behalf of a third party when the third party is unable to do so personally. This will include minor children, or persons who suffer from mental illness or unconsciousness.
I am afraid that if I get a domestic violence interdict, my significant other will evict me from the house. What should I do?
The domestic violence act makes provision for a respondent not to hinder a complainant or any other person residing in a property, from freely entering and exiting the said property.
I do not have money for an attorney, but I fear for my life. What should I do?
As mentioned above, it is not necessary to approach the domestic violence court with an attorney. In other words, members of the public are able to approach the court on their own. In more complex matters it may be wise to seek legal counsel from one of the various pro bono organizations in South Africa.
IF YOU, OR SOMEONE YOU KNOW, ARE A VICTIM OF DOMESTIC VIOLENCE, PLEASE CONTACT US FOR ASSISTANCE. HELP IS AVAILABLE!