Domestic violence is defined in the Domestic Violence Act of 1998 as physical, verbal, emotional, psychological or economic abuse, intimidation, harassment, stalking, damage to property, entry into complainant’s residence without consent (when they do not live together), or any other controlling abusive behavior towards the complainant, where such conduct harms, or may cause imminent harm to the safety and wellbeing of the complainant.
South Africa has one of the highest incidences of domestic violence in the world. Every day women are murdered, physically and sexually abused, threatened and humiliated by their partners. It is not only women who are abused, but children and sometimes men as well. Domestic violence is not only limited to heterosexual partners, but it also occurs in same-sex relationships.
Domestic violence is a pattern of abusive behavior that transgresses one’s right to be free from violence. When one partner in a relationship harms the other to obtain or to maintain power and control over them, regardless of whether they are married or not, living together or living apart, that is domestic violence. The purpose of the Domestic Violence Act is to afford victims of domestic violence the maximum protection from domestic abuse that the law can provide.
Any person who is a victim of domestic violence can apply to the local Magistrate’s Court for a protection order. An application may also be brought by a person who has a material interest in the wellbeing of the complainant. When a complainant brings a case of domestic violence to court, they are referred to as the Applicant, and the person against whom the protection order is sought is referred to as the Respondent. Such an application is heard in camera (in private), meaning that the parties give their evidence with no public in the court gallery.
The court will consider the Applicant’s application for a protection order, and if the court is satisfied that there is sufficient evidence that the Respondent is committing an act of domestic violence, and undue hardship may be suffered by the Applicant if an interim order is not granted, then the interim order will be granted.
When an interim order is granted by the court, it will direct the Respondent to not commit acts of domestic violence against the Applicant. On the return court date the Respondent will have to show cause why the interim protection order should not be made final. On the return date, the court will either make the interim protection order final or will dismiss the matter.
When a protection order is granted, it comes with a suspended warrant of arrest. If the Respondent breaches or disobeys the terms of the protection order, then Applicant can go to the South African Police Service (SAPS), who can use that warrant of arrest to arrest the Respondent.
The police have a big role to play when it comes to domestic violence. They have a duty to protect victims of domestic violence, and the Domestic Violence Act describes their duties. A protection order remains in place forever and can only stop when it is cancelled or withdrawn by the Applicant, or when the court sets it aside.
When a protection order is granted, the police do not arrest the Respondent unless he is in breach of the protection order or he disobeys it.
In the event that a Respondent is in breach of a protection order, then that is a criminal offence. The Respondent will be charged for breach of the protection order, and will be required to appear in a criminal court. Furthermore, when a protection order is granted it does not give the Respondent a criminal record.
The world is battling with the pandemic of Covid-19, but South Africa is also battling with the pandemic of domestic violence. During the national lockdown there have been many cases of domestic violence that have been reported and some have been fatal.
Even though the courts were not fully functional during lockdown alert level 5, they were dealing with and hearing cases of domestic violence. South Africa still has a long way to go in its fight against domestic violence, and we should all encourage victims of domestic violence to come forward. In order to fight domestic violence, we need to educate our communities about their rights and about access to justice. If we work together we can fight the scourge of domestic violence.
Siziphiwe Yuze
Rhodes University Law Clinic
