Domestic Violence and Protection Orders

Domestic Violence and Protection Orders

If you are in a Domestic Relationship and you suffer abuse in the hands of your Partner, you can seek a Protection Order to stop the abuse.

A Protection Order or Restraining Order is an Order granted by the Domestic Violence Court which prohibits the person against whom the Order was made, to commit any acts of Domestic Violence again you.

A Domestic Relationship basically means that you and your Partner or ex-Partner (herein after referred to as Partner) are or were married to each other, or live or lived together, have a child together are family members, share or shared the same residence.

Domestic Violence is often misunderstood and the word causing the confusion is the word ‘violence’. Many people, therefore, believe that there must be battery and bloodshed in their home before this term applies to them. However, this is not the case, as can be seen hereunder.

The Act describes Domestic Violence 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, where the parties do not share the same residence
• any other controlling or abusive behaviour towards a complainant
• If you are experiencing any one or more of the preceding, you should consult with a Family Law Attorney to have this dealt with immediately. 

The Domestic Violence Act, Act 116 of 1998, describes the following types of abuse:

“economic abuse” includes- (a) the 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; or (b) the unreasonable disposal of household effects or other property in which the complainant has an interest;

“emergency monetary relief” means compensation for monetary losses suffered by a complainant at the time of the issue of a protection order as a result of the domestic violence, including- (a) loss of earnings; (h) medical and dental expenses; (c) relocation and accommodation expenses; (d) household necessities;

“emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a complainant, including- (a) repeated insults, ridicule or name calling; (b) repeated threats to cause emotional pain; or (c) the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security;

“harassment” means engaging in a pattern of conduct that induces the fear of harm to a complainant including60 6 No. 19537 GOVERNMENT GAZETTE, 2 DECEMBER 1998 Act No. 116,1998 DOMESTIC VIOLENCE ACT, 1998 (xiii) (xiv) (xv) (xvi) (xvii) (xviii) (xix) (xx) (xxi) (xxii) (xxiii) (xxiv) (4 (bl repeatedly watching. or loitering outside of or near the building or place where the complainant resides, works, carries on 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;

“intimidation” means uttering or conveying a threat, or causing a complainant to receive a threat, which induces fear.

Obtaining a Protection Order against your Spouse is the first step of the recovery process and will assist you in regaining control of your life. There are many support groups for the victims of violence, and it is crucial to seek help.

Often it happens that people have been so intimidated that they are caught between ‘a rock and a hard place’: they are terrified of what will happen to them if they do nothing and terrified of what will happen to them if they do something.

No one has the right to do that to another person, and nobody should live in fear.

To apply for a Protection Order, you will bring an Ex Parte Application. This means that you apply for the Court Order without notice to your Partner.

This Application for an Interim Protection Order is based solely on your Application for a Protection Order, i.e. complete the FORM 2. [Regulation 4]. APPLICATION FOR PROTECTION ORDER. SECTION 4(1) OF THE DOMESTIC VIOLENCE ACT, 1998 (ACT NO. 116 OF 1998).

This form is in the format of an affidavit, and you can file a more detailed affidavit of the abuse perpetrated against you to assist the Court with a clearer picture of what is happening to you.

You need to show the Court that you live or work within the Court’s jurisdiction or that your Partner lives or work in the Court’s jurisdiction. Alternatively, the cause of action could have taken place in the Court’s jurisdiction.

Secondly, you must show that you are or were in a Domestic Relationship with your Partner (the Respondent in the Application).

Thirdly, you must show that an act of Domestic Violence occurred. This can take on many forms and can include photos of marks where you incurred physical injuries, SMS’ or emails with abuse content on, recordings of where you are threatened etcetera.

You can then approach the Magistrate’s Court that has jurisdiction to bring your application for a Protection Order.

The application gets done by way of an affidavit (Form 2), and the Clerk of the Court can assist you if you do not have a Family Law Attorney helping you.

The Court can then grant an Interim Protection Order which means that you get your Court Order that states that your Partner or ex-Partner must stop the abusive behaviour. If the Court feels that there is no proper case, they will issue a Notice to Show Cause.

In both instances, there will be a return date for the Parties to appear before the Court so that the Court can hear the other side – i.e. your Partners’ version before the Court will either grant the final Protection Order, postpone the matter to a later date or dismiss the Application for a Protection Order.

The standard of proof in Protection Order Applications is on a balance of probabilities and if you convince the Court, on this basis, then your Protection Order will be granted.

The Police will serve a copy of the application and the Interim Protection Order (or the Notice to Show Cause) on your Partner. It is valid from the time that the document is served on them.

The Clerk of the Court, will when they receive the Return of Service in respect of the Interim Protection Order, confirming that it has been served on your Partner (the Respondent) in the prescribed manner, a warrant of arrest, which authorises the arrest of your Partner must be served on, or given to the you (you are known as the Complainant.

If an Interim Protection Order is granted or if the Interim Protection Order is made final your Partner should be arrested if they are in breach of the provisions of the Protection Order.

This gets done by taking the Protection Order to the Police or to call the Police to you for assistance, together with the warrant of arrest.

The South African Police Service must assist the victim of Domestic Violence and must also inform the victim of the right to institute criminal proceedings against their Partner. This duty was stressed by the court in Khanyile v Minister of Safety and Security and Another 2012 (2) SACR 238 (KZD) at paras 38 and 39.

The commitment of SAPS to victims of Domestic Violence

It is the commitment of the SAPS to treat victims of domestic violence with   sensitivity and care.
 

As Police Officials. -

• we will treat victims with respect and protect your dignity;
• listen to what victims have to say;
• not insult or blame or suggest that it was their own fault that they were abused;
• assist you with empathy and care;
• inform victims of their rights and options.

To ensure that this has been done. -

• we will ask victims to sign the Occurrence Book at the police station;
• provide victims with a notice in a language they understand, and explain how they should proceed;
• make an effort to find someone to speak to the victim in the language he/she understands;
• take a victim’s statement in privacy and not in the presence of the abuser or the public;
• decide on the basis of your statement, whether to arrest the abuser and take his/her firearm, as well as determine the victim’s needs and how to assist him/her;
• serve a protection order on the person against whom it was made, as directed by the court;
• keep a copy of the protection order and record every arrest made as proof for victims;
• note your complaint in the Incident Register at the station as further proof that you reported the matter.

A failure by the Police Officers to assist the victim of abuse can have severe consequences for the Police Officer as they have a legal duty to assist.

It is essential to understand that you are not laying a criminal charge against the abuser when you obtain a Protection Order against them. Your Protection Order Application is simply to get an order to make the abuse stop.

You can, however, open separate criminal charge(s) against them if you choose to.

In many instances, Protection Orders are not obtained because the Party being abused feels that the abuse will intensify if they seek to protect themselves legally.

Yet, if you are the victim of abuse and perhaps crimes have been committed against you of either common assault; assault with intention to inflict grievous bodily harm; indecent assault; rape; incest; attempted murder; malicious damage to property; aiming a firearm; and abuse of your animals; then you may choose not only to apply for a Protection Order but you are also within your rights to lay a criminal charge or even both.

When you have either an Interim or Final Protection Order, and if your Partner breaks any of the conditions therein, your Partner has committed a crime and can be arrested and criminally charged. 

Protection Orders level the ‘playing fields’ because they give the person being abused power to have the person doing the abusing, arrested the moment they commit another act of abuse.

When the Protection Order is made final, it is then permanent and binding and can only be changed by applying to the Courts.

The Protection Order gives you protection from a variety of situations, including:

• Your Partner must not commit any act of domestic abuse and may not get assistance from any-one else to commit abuse against you. 
• They may be ordered not to enter the common home or a specific room;
• They may be ordered not to go to your place of work;
• Etcetera. 

A Protection Order granted under the Act is binding until it is set aside.

The Domestic Violence Act is aimed at protecting the vulnerable, but this very Act is sometimes abused. If a Partner obtains a Protection Order on false allegations, without allowing the Partner to respond, the Partner may be arrested without them having had an opportunity to state their case.

In case such as this, the Court can make a cost order against the Party that acted in a frivolous, vexatious or unreasonable way.

We have extensive experience dealing with Domestic Violence matters and if you need assistance with your Protection Order Matter contact us!