Domestic Violence Attorneys Pretoria

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Domestic Violence and Protection Orders

• Domestic Violence in South Africa is regulated by
  the Domestic Violence act 118 of 1998

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Domestic Violence and Protection Orders

• Domestic Violence or Domestic Abuse takes on
  various forms and the act of domestic violence
  may be committed in a variety of domestic
  relationships. The forms of Domestic Violence may
  include physical abuse, sexual abuse, emotional,
  verbal and psychological abuse, intimidation,
  harassment, stalking, damage to property, entry
  into the complainants house without consent,
  where the parties do not share the same
  residence, or any other controlling of abusive
  behaviour towards the complainant.
• Domestic violence includes any form of harm
  perpetrated against a complainant that can cause
  imminent harm to the safety, health or wellbeing
  of the Complainant.
• There are two types of orders available to people
  that are abused, namely a Protection Order and a
  Harassment Order.

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What is a Protection Order?

• A Protection Order is a Court Order, issued by a
  Magistrate, wherein the perpetrator of the
  domestic violence is ordered not to commit acts
  of domestic violence (abuse) against the
  Complainant. This order is valid and applicable
  throughout the whole of South Africa, regardless
  of which court grants it to you.

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When can a Complainant apply for a Protection
Order?

• The Complainant may approach the Court if they
  feel that the Respondent committed or may commit
  an act of domestic violence.

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How to obtain a Protection Order?

• As the complainant you will have to make a
  sworn statement known as an affidavit and
  complete an application form at your nearest
  police station. Protection order applications do
  not have to be made by the complainant in a
  matter exclusively but may be brought forward by
  any other person who may have an interest in the
  matter. This may include a social worker, a
  counsellor, a teacher, a health service provider
  or a member of the police service.
• You will need to have your full details such as
  your name, ID number, address, phone number and
  address for your place of work. The details of
  the person you are applying for a protection
  order should you have them would also be
  beneficial to you as it assists the court and the
  police in carrying out the process.

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You should be able to explain the kind of abuse
you have endured and be able to say why your
application is urgent, this can be done by
explaining why you may suffer without this relief.

• If you are able and these facilities are
  accessible to you before you apply, then
  photographs, sworn affidavits by witnesses and
  doctors letters should be brought along as well.
• Your affidavit may be accompanied by supporting
  affidavits by people who are aware of the matter.
  The documents must then be delivered to the clerk
  of the nearest court and the application will be
  as soon as reasonably possible considered by the
  court.
• The court being satisfied that there is
  sufficient evidence that the suspect has indeed
  committed or is committing said acts of domestic
  violence, the court will issue an interim
  protection order in favour of the complainant
  against the respondent.

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This order must be served on the respondent for
it to have force and effect.

• Interim orders are intended to bring immediate
  relief and protection to the complainant on a
  temporary basis until a final order from the
  court is issued which will be no sooner than the
  return date when the complainant and respondent
  are to appear before the court where the
  respondent may make representations as to why the
  protection order should not be finalised.
• The respondent not appearing in court, with the
  court being satisfied that there is sufficient
  evidence to grant the final protection order and
  sufficient notice has been given to the
  respondent, has the effect that the court may
  grant the final protection order on the return
  date.

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Domestic Violence Court

• The Domestic Violence Act refers to the court
  and in doing so it points towards any
  Magistrates Court for a district. There will be
  a domestic violence section found in the
  magistrates court. You can ask to be directed to
  the domestic violence clerks office where you
  can be assisted.

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Forms of domestic violence

• According to the Domestic Violence Act, domestic
  violence means

• Physical abuse (meaning any act or threatened
  act of physical violence towards a complainant)
• Sexual abuse (meaning any conduct that abuses,
  humiliates, degrades or otherwise violates the
  sexual integrity of the complainant)
• Emotional, verbal and psychological
  abuse (meaning a pattern of degrading or
  humiliating conduct towards a complainant
  possibly through repeated insults, ridicule, name
  calling, threats or exhibition of obsessive
  possessiveness or jealousy that seriously invades
  the complainants privacy, liberty, integrity or
  security)
• Economic abuse (this firstly includes the
  unreasonable deprivation of economic resources to
  which a complainant is entitled under law or
  requires by necessity which may possibly include
  household necessities for the complainant,
  mortgage bond repayments or payment of rent in
  respect of shared residence.
• Secondly this definition also includes the
  unreasonable disposal of household effects or
  other property in which the complainant has an
  interest)
• Intimidation (meaning uttering or conveying a
  threat, or causing a complainant to receive a
  threat, which induces fear)
• Harassment (meaning engaging in a pattern of
  conduct that induces the fear of harm to a
  complainant including repeatedly watching or
  loitering outside of or near the building or
  place where the complainant resides, works,
  carries on business, studies or happens to be
  repeatedly making telephone calls or inducing
  another person to make telephone calls to the
  complainant, whether or not conversation ensues
  and repeatedly sending, delivering or causing the
  delivery of letters, telegrams, packages
  facsimiles, electronic mail or other objects to
  the complainant)
• Stalking (meaning repeatedly following, pursuing
  or accosting the complainant)
• Damage to property (meaning the wilful damaging
  or destruction of property belonging to a
  complainant or in which the complainant has a
  vested interest)
• entry into the complainants residence without
  consent, where the parties do not share the same
  residence
• any other controlling or abusive
  behaviour towards a complainant

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Domestic Violence and Gender-based Violence

• Gender-based violence (GBV) is a term that
  broadly encompasses the violence that comes about
  due to the disparities found within power
  relationships along the line of gender within a
  specific society.
• Most of the different forms of violence found in
  a society, for the sake of this article focusing
  on domestic violence, fall under the umbrella
  definition of GBV as often times these acts of
  violence upon investigation are gendered in
  nature.
• Interpersonal acts of violence are most often
  perpetrated by men against women and children.
• Intimate partner violence (IPV) is the most
  prevalent form of GBV and is perpetrated by an
  intimate partner or spouse (this includes those
  that may be former intimate partners as well) and
  it does occur within same-sex relationships as
  well as heterosexual ones.

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Domestic Violence Groups and Organisations

• JOKO has provided a page that contains a list of
  organisations along with their descriptions that
  look to end the scourge of domestic and
  gender-based violence in South Africa.
• https//www.joko.co.za/en/end-the-silence/organisa
  tions-that-can-help.html

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Domestic Violence Statistics in South Africa

• In South Africa there are some very alarming
  statistics that emerge when one looks into
  domestic violence. As a country seven women are
  killed daily and 40-50 of men have admitted that
  they have been perpetrators of physical partner
  violence.
• According to StatsSA, almost 50 of the assaults
  were committed by someone close such as a friend
  (22), an intimate partner or spouse (15), a
  household member or relative (13) in 2018/19.
• Women who are separated or divorced found
  themselves more likely than their currently
  married, never married, and widowed counterparts
  to have ever experienced physical (40) or sexual
  violence (16) in 2016.

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Possible jail time in terms of a Protection Order.

• Should an abuser do anything that goes against or
  contravenes the protection order that is in
  place then it is advisable that you immediately
  go to the police station or contact the police by
  phone and report the the situation to them.
• The police will have you make an affidavit in
  which you will be asked to explain when and how
  the contravention occurred.
• There are generally three circumstances in which
  the police will have to arrest the abuser and
  those include the circumstance where not a lot of
  time has passed between when you reported the
  incident and when the incident actually occurred,
  when the police reasonably believe that the
  abuser is going to continue abusing you which may
  lead to serious harm being caused and when the
  police believe that the contravention was of a
  serious nature.
• The above is not to say that if you feel unsafe
  but not in a situation that fits any of the
  mentioned circumstances, there is nothing you or
  the police can do about it.
• Your abuser contravening the protection order
  should always be quickly reported and if the
  police do not arrest them then they must provide
  them a notice to appear in court for the
  contravention of the protection order.

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The police are also in possession of a
suspended warrant of arrest for your abuser
upon granting of a final protection order.

• This warrant is kept in case your abuser
  contravenes the protection order and the police
  reasonably believe one of the three above
  mentioned circumstances apply to you.
• Take note however that it will be your personal
  responsibility to return to the court for another
  warrant should the one issued terminate.
• Termination of an arrest warrant takes place when
  it is either destroyed, lost, or used to have the
  abuser arrested when they are in contravention of
  your protection order.
• Every time your warrant terminates you will have
  to revert to the court to make an affidavit where
  you explain that your previous warrant has
  terminated, and you request a new one to protect
  yourself.
• The contravention of a protection order is a
  crime which carries a maximum prison sentence of
  5 years, the imposition of a fine, or both. This
  proceeding would be heard in a criminal court in
  front of a magistrate.

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Domestic Violence Laws in South Africa

• South Africa has in place other pieces of
  legislation, aside from the Domestic Violence
  Act, that seek to curb the occurrence of violence
  and more specifically domestic and gender-based
  violence.

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Section 12 of the Constitution provides everyone
the right to freedom and security along with the
right to bodily and psychological integrity.

• It is enshrined in Section 28 of the Constitution
  that every child has the right to be protected
  from maltreatment, neglect, abuse, degradation or
  exploitative labour practices and to be protected
  during times of armed conflict.
• The legislature has also promulgated the
  Protection from Harassment Act which sets out the
  meaning of sexual harassment which consists of
  unwelcome sexual attention from a person who is
  aware or ought reasonably to be aware that such
  attention is unwelcome, amongst other points.

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How to Set Aside a protection Order

• Protection orders can be used on several
  different occasions for several years without
  being terminated. The order will only be stopped
  when you as the complainant and person the order
  is in favour of, goes to court and cancels or
  withdraws it.
• The court also has the power to set the
  protection order aside. The respondent or person
  against whom a domestic violence order was
  granted is able to apply to the court that the
  order be set aside but this cannot happen until
  the court is satisfied that you have been
  notified to come to court where the application
  to set the order aside will be heard.
• You can have peace of mind that your abuser will
  not be able to tamper or interfere with your
  order without you knowing about it.
• If you would like to amend or change the terms of
  the order, then an application to the clerk of
  the domestic violence office at the magistrates
  court can be made. This amendment may include
  things such as a change in residence or premises
  of employment.
• Domestic Violence Orders are possibly the most
  abuse legislation is South Africa, and many
  Parties abuse these orders to facilitate certain
  outcomes mostly in divorce matters.
• If you need assistance with a Domestic Violence
  Application or with a Rescission of a Domestic
  Violence Application, contact us.  We will
  explain your rights and obligations to you in a
  clear way.

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