WHAT IS DOMESTIC VIOLENCE IN TERMS OF THE LAW IN SOUTH AFRICA?

 In 2019, the World Health Organization found that approximately 60,000 women and children are victims of domestic violence. According to an article written by Tanya Farber in the Times live (01 September 2020), statistically, South Africa is said to have the highest statistics of gender-based violence.

 In terms of the United Nations Charter, Domestic Violence is the abusive behaviour in any relationship that is used by one person to gain or maintain control over another person. It is regarded as a serious social evil. The Domestic Violence Act No. 116 of 1998 of South Africa defines domestic violence as:

  • any form of abuse which includes physical, sexual, emotional, psychological or economic harassment
  • damage to property
  • stalking
  • entry into a person’s property without their consent
  • any other abusive or controlling behaviour where such a conduct causes harm or may cause harm to your health, safety, or well being

The Domestic Violence Act No.116 of 1998 was enacted with the main purpose to afford the victims of domestic violence the maximum possible protection from domestic abuse that the law can provide. The Act further introduced measures which seeks to ensure that relevant organs of state are committed to the elimination of domestic violence.

In terms of section 12(1) of the Constitution of the Republic of South Africa,
everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. The constitutional includes the right to oblige the state to deal with domestic violence that in terms of bodily and psychological integrity, the right to dignity, the right not to be tortured in any way, and the right not to be treated or punished in a cruel, inhuman or degrading way.

There are many kinds of abuse namely like physical abuse, sexual abuse, emotional abuse and psychological abuse to name a few.

WHAT CAN I DO WHEN I AM BEING ABUSED?

Any individual who is experiencing any form of abuse should approach the Magistrate’s Court and the Domestic Violence Department. The applicant (individual) should state the nature, extent, and severity of the incident that the respondent has caused him/her in an affidavit (a sworn, written statement to be used as evidence of an alleged offence). All relevant details such as exact dates, actual words spoken and violent conduct to the applicant must be documented.

Domestic violence interdicts (a legal document that forbids a person from doing something – proximity to another person may, for example, be forbidden) may only be brought by family members i.e., mother, father, brother, sister and spouses or any interested party in the life of the applicant. The magistrate will grant an order against the respondent intending to prevent further violence, failing which criminal prosecution may take place.

Respondents have the opportunity to respond to the allegations before a final order is granted.

WHERE CAN I APPLY FOR A PROTECTION ORDER?

The applicant can apply for a protection order at the Domestic Violence Section of the Magistrate’s Court closest to him/her, or closest to where the abuser applicant lives or works.

AGAINST WHOM CAN I SEEK A PROTECTION ORDER?

  • A person to whom you are married, whether by civil or customary rites.
  • Your partner who lives or has lived together with you, even if you are/were not married to each other.
  • The other parent of your child or persons who share parental responsibility with you.
  • A person whom you are in a relationship with.
  • A person with whom you share or have recently shared the same residence.

WHAT CAN I EXPECT DURING THE COURT PROCEEDINGS?

Proceedings under the Domestic Violence Act are conducted in camera
which means that the only people who may be present in court are:

  • the parties,
  • their legal representatives,
    someone who brings on application on the complaint’s/applicant’s behalf,
  • witnesses,
  • officers of the court,
  • and not more than three persons each to provide support to the complainant and respondent.

The court may exclude any person from attending the proceedings and may exercise its power to hear proceedings behind closed doors. The Domestic Violence Act prohibits the publication of any information which may, directly or indirectly, reveal the identity of any party to the proceedings. If the interest of justice permits, the court may further direct that any other information relating to the proceedings may not be published.

Such a direction does not apply to the publication of a bona fide law report which does not mention the names or reveals the identities of the parties or witnesses. Contravention of the prohibition in the Act on publication is a crime which is punishable with a fine or imprisonment for a period not exceeding two years, or both a fine and imprisonment.

WHAT ORDER CAN I EXPECT THE COURT TO MAKE?

The court can, on the merits of the case, grant the following orders:

1)         An interim protection order.

The court may not make an immediate protection order; therefore an interim protection order can be issued to protect the applicant until a decision has been made on the final protection order. An interim protection order will only be issued if the court is satisfied that there is prima facie evidence (sufficient evidence to make a presumption or establish a fact) that the complainant’s life is in danger. The court will thereafter issue a warrant of arrest in addition to the interim protection order and set a date for both the applicant and the respondent to appear before the court.

2)         A final protection order

After proper service of the interim protection order has been affected (the Sheriff has served the interim protection order on the respondent personally) and the respondent fails to appear on the date specified, the court must confirm the final protection order.

If the respondent does appear and opposes the interim protection order, the court must hear the matter. If the court finds on a balance of probabilities (if something is more likely to have occurred than not) that the respondent has committed or is committing an act of domestic violence, the court must issue a final protection order.

If the respondent is in breach of the protection order, the complainant can approach his/her nearest police station and the respondent will be held in contempt of court. The respondent can face the likelihood of imprisonment if he/she is in breach of the order.

CAN I HAVE LEGAL REPRESENTATION AND HOW MUCH WILL IT COST ME?

Any person to whom institutes action under the Act may have legal representation.
If the complainant is unrepresented, the Clerk of the Court must inform him/her of the legal relief available in terms of the Act and the right to lodge a criminal complaint against the respondent if a crime has been committed. Alternatively the party can approach legal aid for legal assistance if he/she cannot afford legal representation.

Each party bears his or her own cost unless he/she acted frivolously, vexatiously, or unreasonably. In the latter event a cost may be made against the party that has acted unreasonably. Legal costs will also vary according to the attorney’s fees and disbursements to carry out instructions given by their client.

In conclusion, all women, children and men are entitled to at least a minimum respect for their human dignity. Thus, South Africa has put stricter laws in place to protect the rights and safety of all individuals. Any person looking to apply for a protection order, or looking to defend the granting of a final order should read the Domestic Violence act carefully as the Act is very specific as to what behaviour constitutes domestic violence, alternatively, appoint a specialist domestic violence attorney.