By Mhleli Khomo
We will now discuss the roles played by various State agencies and private service providers who assist victims of domestic violence.
The Police
The Police have a crucial role to play when it comes to domestic violence matters. They are required to help victims of domestic violence in the manner stipulated in Section 18 of the Domestic Violence Act, as follows:
- Reporting the abuse
When the complainant decides to report the abuse, they must assist the complainant to complete the forms and affidavits prior to the matter being referred to the Clerk of the Court for further attention.
- Assistance as stipulated in Section 2 of the Domestic Violence Act
This section mandates any member of the police to assist complainants in a manner which is required or necessary under the specific circumstances. This assistance must be rendered at the scene of the incident of domestic violence, or as soon thereafter as is reasonably possible, or after the domestic violence incident is reported. This includes making arrangements for the complainant to receive medical assistance or to seek suitable alternative shelter.
- The arrest
Section 3 of the South African Police Act and Section 40 of the Criminal Procedure Act allow the police to make an arrest at the scene of the incident without a warrant of arrest or a Protection Order, if they reasonably hold the view that an act of domestic violence has been committed and the circumstances exist which support such a view.
- The legal options
Before or after an arrest has been made, the police have a duty to explain to the complainant all the legal options which are available to them in the event of alleged domestic violence. This includes obtaining a protection, laying a criminal charge against the alleged perpetrator, as well as how the complainant can enforce their rights.
- The application for a Protection Order and Service
The police must assist the complainant to complete the relevant forms. Section 4(3) caters for those alleged victims who are unable to bring the application themselves. It empowers the Police to bring the application on behalf of the complainant with the complainant’s consent on their behalf. This is not possible when the complainant is mentally challenged, a minor, unconscious or has been recognized by the court as being unable to give consent. The Police also serve on the alleged abuser the protection order or notice to appear in court.
- Execution of warrants of arrest
When a final protection order is granted, a warrant of arrest is issued. The execution of the warrant is, however, suspended until the moment when the conditions of the order are violated by the respondent. The police are tasked with executing such a warrant by arresting the respondent when the conditions are violated.
- Seizure of dangerous weapons/arms
The police are mandated by Section 9, upon authorization of the court, to seize any dangerous weapons or arms in the respondent’s possession if he/she has used or threatened to use these against the complainant or others who have been protected in the protection order.
- Accompanying the Complainant
For the complainant’s safety, the police can accompany the complainant to collect listed personal property if the protection order allows for this.
Failure by a police officer to properly perform any of the abovementioned tasks is an act of misconduct, which subjects the officer to disciplinary action.
The Prosecuting Authority
No prosecutor may refuse to prosecute someone or withdraw a prosecution relating to the Domestic Violence Act without authorisation or permission from the Director of Public Prosecutions or a properly delegated representative of such a Director in writing.
Clerk of the Court
The Clerk of Court assists the complainant to complete the affidavit detailing the nature of the abuse suffered. The clerk must then open a file, record it, and take the application to the Magistrate, who will prepare a notice to the abuser in which he/she is informed about the protection order granted.
Sheriff of the Court
The Sheriff serves the application and the protection order upon the respondent, when requested to do so either by the Court or the complainant.
Lawyers and Paralegals
Lawyers often provide legal representation in court, in particular when the matter is opposed, and the opposing party has legal representation. They lead oral evidence and present argument in court demonstrating why a final protection order should or should not be granted.
Paralegals educate and raise public awareness of the rights of victims of domestic violence through workshops and seminars. They work closely with the abovementioned role players, and can assist by completing the application for a protection order.
Mhleli Khomo is a Candidate attorney at the Rhodes University Law Clinic.
