By Siphokazi Mlindazwe and Emma Charlene Lubaale
In our last article, we provided a general introduction to the Domestic Violence Act 116 of 1998 (DVA). In that issue, we explained what ‘domestic violence’ and a ‘domestic relationship’ mean. In this issue, we discuss the protection order, an important remedy that is at the disposal of a victim of domestic violence.
Applying for a protection order
Understanding the process for applying for a protection order is vital to protecting victims of domestic violence. The application is in the form of an affidavit and must contain the following:
- the facts relating to the domestic violence and evidence in support thereof, i.e., the type of domestic violence, when it happened, medical reports;
- the type of protection that is applied for, i.e., that the respondent should stop abusing the complainant; and
- the name of the police station to which any breach of the protection order will be reported.
Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application. The application and affidavits must be lodged with the clerk of the court, who shall then submit the application and affidavits to the court.
An application for a protection order may be brought outside ordinary court hours, or on a day which is not an ordinary court day if the court is satisfied that the complainant may suffer undue hardship if the application is not dealt with immediately.
The duty of the South African Police Service to assist victims of domestic violence
The SAPS has a duty to assist victims of domestic violence. Upon receiving any complaint of domestic violence, any member of SAPS must assist the complainant by ensuring that they get sufficient information from the complainant about the incident. Members of SAPS must respond to the complaint without any unreasonable delay. They must inform the complainant of their rights and the available solutions.
Applying for a protection order on behalf of a complainant
An application may be brought by any other person on behalf of the complainant, including a health service provider, social worker, teacher, or any person who has a material interest in the wellbeing of the complainant, provided that the application must be brought with the written consent of the complainant.
There are exceptions to obtaining written consent from the complainant. The exceptions are where the complainant is a minor (under the age of 18 years), mentally challenged, unconscious, or any person whom the court is satisfied is unable to provide the required consent.
A minor may apply for a protection order and there is no age limit for such an application. In addition, anyone may apply for a protection order on behalf of a minor without the assistance of the parent or guardian.
To summarise, the DVA provides a useful framework on the nature and scope of domestic violence, and one of the remedies at the disposal of victims is the protection order.
(Siphokazi Mlindazwe is a Candidate Attorney at the Rhodes University Law Clinic, and Emma Charlene Lubaale is Associate Professor at the Rhodes University Faculty of Law).
