By Lepho Mantanga, Attorney at Rhodes University Law Clinic
There are a number of legal avenues open to victims of domestic violence. One common approach is that the victim may visit their closest Magistrates’ Court (domestic violence division) to apply for a protection order against the perpetrator using Form 2, which may be obtained at the court or online.
How to fill in Form 2: Relevant details of the parties
The victim (now known as the applicant) must provide the full details of themselves and the perpetrator (now known as the respondent) in sections 1, 2 and 3 of Form 2. This includes the full names, identity number, home address, and alternatively a work address for both complainant and respondent. The addresses are needed so that the document can be served on the respondent.
The person applying for a protection order does not necessarily have to be the person directly affected by the act of domestic violence, as noted in section 2. Another person can apply on behalf of the affected person (victim) if they have the written consent of the affected person. People who are most likely to act on behalf of the victim are school teachers, counselors, or any person who is concerned about the well-being of the victim. In some very rare circumstances, the court may not require written consent by the victim, for example where the complainant has no legal standing (for example, underage children or mentally impaired persons).
Under section 4 of Form 2, the applicant can also fill in the details of other individuals who are affected by the acts of the respondent, and include details about exactly how they are affected. For example, if the act of domestic violence is happening in a common home shared by both affected persons and the respondent, a number of people will be affected.
The details of the acts of domestic violence
Under section 5 of Form 2, the applicant must provide the full reasons that have led to the application for the protection order – in other words, details of the act(s) of domestic violence committed. There could be more than one act of domestic violence. There could be a sequence of events that resulted in a single act of domestic violence. Apart from this detail, the applicant must also provide supporting documents (if they have any) in the form of photographs, medical reports, or affidavits by witnesses to the acts of domestic violence committed. All this detail is important because it will determine the urgency in considering the application by the Magistrate.
Information regarding the urgency of the application
In section 6 of Form 2, the applicant has to provide facts to support their request to the court to hear the application urgently – in particular, explaining the negative impact to her or his life if the court fails to grant an interim protection order on an urgent basis.
The types of orders that may be granted by the court
In section 7, the applicant must choose from a list of possible orders that the court can make. The list of orders is on the form. It should be noted, however, that applications for protection orders may not be used as a way of denying the respondent access to his or her primary place of residence. There may be instances where the applicant wishes to request that the court bar a respondent from their shared home because the respondent is threatening the applicant’s life.
In these circumstances, the victim is required to follow a very different court procedure – the victim must obtain an eviction order required by the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, and they will need to be represented by an attorney to do this.
Section 8 of Form 2 gives the court discretion to enforce additional conditions as necessary to protect and provide for the safety of the applicant. This will depend on the facts surrounding the acts of domestic violence articulated in section 5 of the form.
The application under Section 9 allows the applicant the opportunity to retrieve their property from the respondent. This applies most notably to cases in which the applicant and respondent are married to each other out of community of property.
The Domestic Violence Act has introduced this application form to provide easy access to victims of domestic violence. It is an understandable and easy-to-complete form, designed to bring about quick but effective relief for victims. It may soon be possible for applicants to obtain protection orders online if a pilot project in Gauteng and the Western Cape is successful. This remains to be seen.