Domestic violence or family violence is governed by the Domestic Violence Act 116 of 1998, which aims to protect victims of domestic violence who are in domestic relationships.
Domestic violence or abuse can take on many forms, namely:
- Physical abuse.
- Sexual abuse.
- Verbal abuse.
- Economic abuse.
- Intimidation.
- Harassment.
- Stalking.
- Damage to property.
- Entry to the Complainant’s residence without consent, where parties do not share the same residence.
- Any other controlling or abusive behaviour towards the complainant.
A victim of a domestic violence may approach the Magistrate’s Court, domestic violence section, to apply for a protection order against the Respondent through the assistance of the Clerk of the Court.
Against whom may a victim of domestic violence apply for a protection order?
In terms of the Act, a victim may apply for a protection order against the other party if they are in a domestic relationship. The parties are in a domestic relationship if:
- They are or were married to each other according to any law, custom or religion.
- They are partners (whether of the same or opposite sex) who live or have lived together although they are or were not married to each other, or are not able to be married to each other.
- They are parents of a child or they have or had parental responsibilities for that child.
- They are family members related by consanguinity, affinity or adoption.
- They are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration.
- They share or recently shared the same residence.
Once it has been established that the parties are in a domestic relationship, the Clerk will assist a victim to apply for a protection order in the prescribed manner. The court must as soon as is reasonably possible consider an application. Supporting affidavits by persons who have knowledge of the matter may accompany the application. The Court may grant one or both of the following orders:
1. Interim Protection Order
If the court is satisfied that there is enough evidence that the Respondent is committing or has committed an act of domestic violence and that a victim will suffer undue hardship if a protection order is not granted, the court will issue an interim protection order in the prescribed manner. The order will then be served on the Respondent, together with a notice calling upon him/her to show cause on the return court date why a final protection order should not be granted. A warrant of arrest will also be issued in the event that the Respondent breaches the terms of the interim protection order.
2. A Notice to Show Cause
If the court does not issue an interim protection order, the court must direct the Clerk of Court to cause copies of the application to be served on the Respondent, together with a notice calling upon him/her to show cause why a protection order should not be granted. This order is granted where no undue hardship might be suffered by the victim if an interim protection order is not granted.
What happens on the return date?
On the return date, both parties will appear before the Magistrate. The Respondent will be given an opportunity to tell his/her side of the story, and the victim to reply to the Respondent’s version. The Magistrate will decide whether or not to grant a protection order. Should the Magistrate be unable to make a decision, the matter will be postponed for trial.
What happens on the trial date?
On the trial date the parties will present their cases by giving evidence through their attorneys or by themselves before the Magistrate. They may call witnesses. After both parties have been heard, the Magistrate will make a decision, based on the evidence presented, whether or not a protection order should be granted. If a protection order is not granted, the case will be dismissed.
What happens if a protection order is granted?
The Magistrate will read out to the Respondent the terms of the protection order that he/she must comply with. A warrant of arrest will be authorised for the arrest of the Respondent in that event that he/she should breach any of the terms of the Order. This warrant will be valid for five years from the date the order is granted. A copy of the protection order and warrant of arrest will be made available to both parties.
Ndumiso Khumalo
Rhodes University Law Clinic
