Defining Domestic Violence | What is Domestic Violence In South African Law?

South African law defines domestic violence broadly under the Domestic Violence Act 116 of 1998, which recognises several categories of conduct — physical abuse, sexual abuse, emotional, psychological or verbal abuse, economic abuse, intimidation, stalking, harassment, damage to property, and entry into the complainant’s residence without consent — when committed by a person in a defined “domestic relationship” with the complainant. The Act applies whether or not the parties are still living together, whether or not they are married, and whether the relationship is same-sex, customary, or engaged. A complainant who falls within the Act’s scope may apply for a protection order at any Magistrate’s Court in South Africa, including an interim protection order issued on the day of application in urgent cases. A breach of a protection order is a criminal offence carrying, on a first conviction, a fine or up to five years’ imprisonment (or up to ten years on a second or subsequent conviction), or both.

The Statutory Framework: What the Act Covers

The Domestic Violence Act 116 of 1998 is the principal statute governing domestic violence in South Africa and applies uniformly across all nine provinces. It commenced on 15 December 1999 and has been consolidated on the Southern African Legal Information Institute (SAFLII) as the authoritative free source of the Act’s text. The Act was substantially amended by the Domestic Violence Amendment Act 14 of 2021, which was assented to and signed by the President in January 2022 and commenced in phases through 2023 and 2024. The Amendment Act broadened the definition of “abuse,” expanded standing to apply on behalf of a complainant, and introduced new procedural protections during application and enforcement.

The Domestic Violence Act sits alongside other protective frameworks rather than replacing them. Where the conduct alleged amounts to a sexual offence, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 applies. Where children are involved, the Children’s Act 38 of 2005 governs parental responsibilities, care, and contact. Where financial support is sought alongside protection, the Maintenance Act 99 of 1998 sets out the procedure for maintenance orders. A protection order under the Domestic Violence Act does not replace a criminal charge — the two pathways run in parallel, and the Act expressly contemplates both.

The Categories of Abuse Recognised by the Act

Section 1 of the Domestic Violence Act 116 of 1998 defines “domestic violence” to include conduct falling into any of the categories set out below. A complainant need not prove more than one category — any one of these, when engaged by a person in a defined domestic relationship, is enough to ground an application:

1. Physical abuse — assault or any other physical act that causes or could cause harm to the complainant, including attempts at physical harm and behaviour that induces a reasonable fear of physical harm.
2. Sexual abuse — any conduct that abuses, humiliates, degrades or otherwise violates the complainant’s sexual integrity, including any non-consensual sexual act and any indecent exposure.
3. Emotional, psychological or verbal abuse — non-physical conduct that harms the complainant’s mental wellbeing, including patterns of demeaning, threatening, controlling or humiliating conduct, with or without accompanying physical abuse.
4. Economic abuse — the unreasonable withholding of financial support or economic resources to which the complainant is entitled, the denial of access to necessities, or the exploitation of the complainant’s economic resources.
5. Intimidation — uttering or conveying a threat, by word or conduct, that the complainant or a related person will be harmed.
6. Stalking — repeatedly watching, following or contacting the complainant without consent, or loitering near where the complainant resides, works or frequents.
7. Harassment — engaging in conduct that causes the complainant alarm, fear or distress, including persistent unwanted contact or communications.
8. Damage to property — wilfully damaging or threatening to damage property belonging to the complainant or a related person.
9. Unlawful entry into the complainant’s residence — entering the residence or property of the complainant without consent where the parties do not share the residence.

The Act’s definition also operates as a catch-all: any other behaviour of an intimidating, threatening, abusive, degrading, offensive or humiliating nature that harms the complainant — or that would reasonably cause the complainant to believe harm may be caused — may also constitute domestic violence.

Who Counts as Being in a “Domestic Relationship”

The Act’s protection is only engaged where the complainant and respondent stand in a defined “domestic relationship” (section 1). The categories below are not exhaustive of every family or intimate arrangement, but they cover the most common factual scenarios the Act is built to address:

Relationship Type	Within the Act?
Married or in a civil union	Yes
Living together (cohabiting) in a relationship, regardless of sexual orientation	Yes
Engaged or in a dating relationship, including a customary engagement	Yes
In a customary marriage or recognised customary relationship	Yes
Related by blood, marriage or adoption (parent–child, siblings, in-laws)	Yes — including family members not in an intimate relationship
Share a child or have an expectation of sharing a child	Yes
In a same-sex relationship	Yes — the Act is gender-neutral
Recently separated, divorced or where the relationship has otherwise ended	Yes — the Act continues to apply

A relationship does not have to be intact, ongoing, or romantic in nature. The Act expressly covers family members, cohabitants (current and former), and parties who share parental responsibility for a child.

What Behaviour Must Be Present to Engage the Act

Four points frequently cause confusion and are worth stating directly:

• A single incident is enough — repeat conduct is not a requirement.
• The complainant need not show physical injury — non-physical conduct (emotional, psychological, economic, harassment) is sufficient on its own.
• The complainant need not have left the relationship — the Act applies to people still living with the abuser.
• The conduct must amount to one or more of the recognised categories and must be engaged by a person in a defined domestic relationship.

For certain categories, the Act applies an objective reasonableness standard — asking whether the conduct “would reasonably cause” harm, fear or distress — rather than the abuser’s subjective intent. The complainant’s lived experience is measured against what a reasonable person in the same position would feel, not against what the respondent claims to have meant.

How the Act Is Enforced: Protection Orders

Section 4 of the Act provides that a complainant — or any person on their behalf (including a child, a family member, a social worker, or any other person with a material interest in the complainant’s wellbeing) — may apply for a protection order at any Magistrate’s Court in South Africa. The relevant court is the one in the area where the complainant resides, works, or carries on business.

Two orders are available:

• Interim protection order (section 5): available in urgent cases and issued by the court on the day of application if there is prima facie evidence of risk. The court must be satisfied that the respondent is committing or has committed an act of domestic violence, that the complainant is or may suffer harm, and that an order is immediately necessary. Interim orders are typically granted without notice to the respondent (ex parte) and take effect upon service.
• Final protection order (section 6): granted after a hearing at which the respondent has the opportunity to be heard. If the respondent does not appear and proper service was effected, the order may issue on the court papers alone. Where the respondent appears, the court hears evidence and may grant the order on a balance of probabilities.

Breach of a protection order is a criminal offence and is arrestable without a warrant. Section 17(1)(a) of the Act provides that on a first conviction the court may impose a fine or imprisonment for up to five years (or both); on a second or subsequent conviction, the maximum rises to ten years’ imprisonment.

What a Protection Order Can Require

Section 7 of the Act sets out the conditions the court may impose in a protection order. Conditions are tailored to the facts of the case and may be combined:

Condition	What It Does
Prohibition on violence or threats	Bars the respondent from committing any of the recognised categories of abuse.
Prohibition on contact or approach	Prevents the respondent from contacting or coming within a set distance of the complainant, their residence, workplace, or family.
Prohibition on access to a shared residence	Orders the respondent to vacate a shared home and/or prohibits re-entry.
Prohibition on access to property	Prevents the respondent from entering or interfering with the complainant’s property.
Maintenance or economic provision	Directs the respondent to maintain the complainant or any child in their care; emergency monetary relief may be granted with the effect of a civil judgment.
Order to seize weapons	Authorises a police officer to seize any firearm or dangerous weapon in the respondent’s possession.
Counselling or treatment referral	Can direct the respondent to attend counselling, therapy, or a substance-abuse enquiry.
Children-specific conditions	Orders relating to contact with, residence of, or custody of children, including restrictions on the respondent’s contact with any child.
Police accompaniment for property collection	Authorises a police officer to accompany the complainant to collect personal property from the shared residence.

The court may not refuse relief simply because other legal remedies exist (section 7(7)), so a complainant is not forced to choose between a protection order and a parallel maintenance, custody, or criminal-law process.

Police and Prosecutorial Duties Under the Act

Section 3 of the Act places specific duties on police officers responding to a complaint of domestic violence. A police officer who receives such a complaint must render reasonable assistance to the complainant, including informing them of their right to apply for a protection order and assisting them with the prescribed application form. Where the officer believes on reasonable grounds that the complainant is in imminent danger, the officer may arrest the respondent without a warrant.

Importantly, the Domestic Violence Act does not require a complainant to lay a criminal charge in order to obtain a protection order. These are independent remedies, and the complainant may pursue either or both. Many complainants apply for a protection order to stop the conduct without engaging the criminal-justice process; others lay criminal charges in parallel. The Act is structured so that one pathway does not foreclose the other.

Where the Law Is Heading: The Amendment Act 14 of 2021

The Domestic Violence Amendment Act 14 of 2021 was assented to and signed by the President in January 2022 and commenced in phases through 2023 and 2024. The Department of Justice and Constitutional Development publishes current procedural guidance through its domestic-violence portal at justice.gov.za/vg/dv.html.

Key expansions made by the Amendment Act include:

• A broader statutory definition of “abuse,” explicitly capturing coercive behaviour (compelling the complainant to abstain from or do something they have a lawful right to do) and controlling behaviour (making the complainant dependent or subservient, including isolation or regulating their movement).
• Newly recognised categories — spiritual abuse, elder abuse (under the Older Persons Act 13 of 2006), sexual harassment, related person abuse, and the act of exposing a child to domestic violence.
• Expanded standing to apply for a protection order on behalf of a complainant, and new procedural protections during application and enforcement.
• An extended definition of “domestic relationship” that captures a person in a close relationship who shares or shared the same residence, assessed by degree of trust, dependence, and length of the relationship — even where the parties are unrelated.
• A mandatory reporting duty: any adult who knows, believes, or suspects an act of domestic violence against a child, a person with a disability, or an older person must report it to a social worker or police. Failure to report is an offence carrying a fine or up to three months’ imprisonment.
• Whistleblower protection for any reporter acting in good faith.

Section references and the precise current commencement dates of the Amendment Act’s various subsections should be verified against SAFLII and the Department of Justice and Constitutional Development portal before any representation is relied on, as phased implementation regulations continued through 2024.

What to Do If You Recognise the Behaviour in Your Own Situation

The Act treats the conduct categories above as the trigger: if any one of them is present and the complainant stands in a defined domestic relationship with the respondent, the Act’s protections are engaged.

Practical next steps are as follows:

1. If you are in immediate danger — contact the South African Police Service on 10111 or your nearest police station. A police officer who believes you are in imminent danger may arrest the respondent without a warrant under section 3 of the Act.
2. Apply for a protection order — applications are made in person at any Magistrate’s Court, with or without an attorney. The prescribed application form, issued under the Regulations to the Act, is available at the court. For urgent matters, an interim protection order can be requested on the day of application, and the Act requires the court to prioritise these matters.
3. Decide whether to lay a criminal charge — this is independent of the protection-order process. You may lay a charge and apply for a protection order, and the two will run in parallel.
4. Gather supporting evidence — medical reports, photographs of injuries, screenshots of messages, witness statements, and a written account of incidents (with dates) will support both the protection-order application and any criminal complaint.
5. Engage an attorney where the matter is contested or where children are involved — an attorney can prepare the application, draft supporting affidavits, and represent you at the hearing. This is particularly important where maintenance, custody, or a related children’s-court matter will run alongside the protection-order application.

Burger Huyser Attorneys fields domestic-violence and protection-order work through its Family Law practice, headed by Director Anna-Mi Nel. The firm takes instructions through any of its Gauteng branches and can support the formal application, the hearing, and any related maintenance or children’s matter that flows from the same factual complaint.

Frequently Asked Questions

Does domestic violence have to be physical?

No. South African law — under the Domestic Violence Act 116 of 1998 — recognises non-physical conduct as domestic violence, including emotional, psychological, verbal and economic abuse, intimidation, stalking and harassment. A single act that falls into any one of the recognised categories is enough to engage the Act; physical injury is not required.

Can I get a protection order against someone I am still living with?

Yes. The Act applies whether or not the parties are still in the same residence, still in the relationship, or still married. The complainant does not have to leave the home or end the relationship to apply for a protection order, and the court can order the respondent to leave a shared residence as a condition of the order.

Does the Act apply to same-sex relationships?

Yes. The Domestic Violence Act 116 of 1998 is gender-neutral. It applies regardless of the sexual orientation or gender identity of the complainant or the respondent, including same-sex marriages, civil unions and cohabiting same-sex relationships.

Does the Act apply if I am not married?

Yes. The Act covers a wide range of domestic relationships, including dating relationships (whether or not engaged), cohabiting relationships, customary marriages, family relationships (by blood, marriage or adoption), and any two people who share a child or who have an expectation of sharing a child. Marriage is not a requirement.

What is the difference between a protection order and a criminal charge?

They are independent remedies. A protection order is a civil application made to a Magistrate’s Court for an order restraining the respondent’s conduct, and a breach of the order is itself a criminal offence. Laying a criminal charge is a separate process handled by the South African Police Service and the National Prosecuting Authority. The two can run in parallel, and obtaining a protection order does not prevent the complainant from laying a criminal charge, and vice versa.

How quickly can I get a protection order?

Interim protection orders are available on the day of application in urgent cases where the court is satisfied there is prima facie evidence of risk. A final protection order requires a hearing at which the respondent is given the opportunity to be heard; the timing depends on the court’s roll, but the Act requires these matters to be prioritised.

Is breach of a protection order a criminal offence?

Yes. Breach of a protection order is a criminal offence under section 17 of the Domestic Violence Act 116 of 1998, carrying a fine or up to five years’ imprisonment, or both, on a first conviction (and up to ten years’ imprisonment on a second or subsequent conviction). A police officer may arrest the respondent without a warrant on reasonable suspicion of breach.

If you recognise the conduct described in this article in your own situation, you can apply for a protection order at any Magistrate’s Court without an attorney. If you would like legal support with the application, the hearing, or any related maintenance or children’s matter that has arisen alongside the abuse, Burger Huyser Attorneys’ Family Law team can take instructions through any of its Gauteng branches — Linden (011 888 0246), Centurion (012 644 4990), Bedfordview (011 201 7190), Alberton (011 439 3990), Pretoria/Menlyn (012 471 5700), Sandton (011 253 3080), Roodepoort (011 668 0030) or Midrand (010 022 4082). The firm handles protection-order applications through its Family Law practice and works alongside the complainant at the relevant Magistrate’s Court. For immediate danger, contact the South African Police Service on 10111.