By the RHODES UNIVERSITY LAW CLINIC
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 the complainant’s residence without consent (when they do not live together), or any other controlling abusive behaviour towards the complainant, where such conduct harms, or may cause imminent harm to the safety and well-being of the complainant. South Africa has one of the world’s highest incidences of domestic violence. 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 also occurs in same-sex relationships.
Domestic violence is a pattern of abusive behaviour that transgresses one’s right to be free from violence. When one partner in a relationship harms the other to obtain or 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 well-being of the complainant. When a complainant brings a domestic violence case 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 the Applicant may suffer undue hardship if an interim order is not granted, then the interim order will be granted. When the court grants an interim order, it will direct the Respondent not to 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 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 Services (SAPS), who can use that arrest warrant to arrest the Respondent. The police have a significant 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 breaches the protection order or disobeys it. If a Respondent is in breach of a protection order, then that is a criminal offence. The Respondent will be charged for violating the protection order and must appear in a criminal court. Furthermore, when a protection order is granted, it does not give the Respondent a criminal record.
We should all encourage victims of domestic violence to come forward. To fight domestic violence, we also need to educate our communities about their rights and access to justice. If we work together, we can fight the scourge of domestic violence.