WHAT EXACTLY IS DOMESTIC VIOLENCE?
The term “domestic violence” entails so much more than just physical abuse. There are various forms of domestic violence and many people don’t even know that they are a victim of domestic violence. This newsletter aims to educate our readers and to make people aware of the daunting issues surrounding domestic violence.
The Domestic Violence Act 116 of 1998 (the “Act”), defines the term domestic violence, which includes: physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the complainant’s residence without consent, where the parties do not share the same residence; any other controlling or abusive behaviour towards the complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant.
The Act goes further to explain some of the above forms of abuse:
Physical abuse – means any act or threatened act of physical violence towards the complainant.
Sexual abuse – means any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant.
Emotional, verbal and psychological abuse – means a pattern of degrading or humiliating conduct towards a complainant, including: repeated insults, ridicule or name calling; repeated threats to cause emotional pain or the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security.
Economic abuse – includes: the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including household necessities for the complainant, and mortgage bond repayments or payment of rent in respect of the shared residence and the unreasonable disposal of household effects or other property in which the complainant has an interest.
Intimidation – means uttering or conveying a threat, or causing a complainant to receive a threat, which includes fear.
Harassment – means engaging in a pattern of conduct that induces 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 conversations ensues and repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant.
Stalking – means repeatedly following, pursuing, or accosting the complainant.
DOMESTIC RELATIONSHIP – WHO CAN GET A PROTECTION ORDER
Now that the forms of domestic violence have been discussed, it is necessary to answer the question, who can get a protection order?
It is important to note that the purpose of the act it to provide for the issuing of protection orders with regard to domestic violence, and for all matter connected therewith. As such, the Act provides clarity regarding who can apply for and get a protection order. In short, anyone who is in a domestic relationship with someone else, can apply for and obtain a protection order against the abuser, known as the respondent in a protection order application.
A “domestic relationship” means: a relationship between the complainant and the respondent in any of the following ways:
They are/were married to each other, including marriage according to any law, custom or religion; they live/lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; they are the parents of a child or are persons who have/had parental responsibilities for that child; that are family members related by consanguinity, affinity or adoption; they are/were in an engagement, dating of customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration and they share or recently shared the same residence.
In this issue:
- What exactly is domestic violence?
- Domestic relationship — who can get a protection order?
- Protection orders.
What do you do if you are a victim of domestic abuse and want to obtain a protection order?
Firstly, it is important to note that any Court, within the area in which the complainant or respondent resides, or works, or where the domestic violence occurred, has jurisdiction to grant a protection order. A protection order is enforceable throughout the Republic.
In terms of Section 4, a complainant may apply for an interim protection order, which application may be brought outside ordinary hours or on a day which is not an ordinary court day, if the court is satisfied that the complainant may suffer undue hardship if the application is not dealt with immediately, be completing and submitting a Form 2. The aforementioned Form 2, can be obtained from the clerk of the court and the application must be made by way of an affidavit which must states the following information: the facts on which the application is based; the nature and terms of the protection order sought and the name of the police station where the complainant is likely to report any breach of the protection order. Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application.
In terms of Section 4(3) an application for a protection order may also be brought on behalf of the complainant by any other person who has a material interest in the wellbeing of the complainant .
The Form 2 application will then be submitted to the Court for consideration. If the Court is satisfied that there is prima facie proof that the respondent is committing or has committed an act of domestic violence and that undue hardship may be suffered by the complainant as a result of such domestic violence if a protection order is not issued, the court must issue an interim protection order against the respondent.
The interim protection order will contain a return date, calling on the respondent to attend at court and to show cause why a final protection order should not be granted.
It is important to note that an interim protection order will only be of force once it has been served on the respondent by way of the police or the sheriff.
If the respondent does not appear in court on the return date, and there has been proper service of the interim protection order and there is prima facie proof of the domestic violence, the court will issue the final protection order. If the respondent appears in court on the return date, the court will hear evidence from both the complainant and the respondent and take witness’ evidence into account, if applicable, before making a decision whether or not to make the interim protection order a final order.
In terms of Section 7 of the Act, the court may grant a protection order, prohibiting the respondent from: committing any act of domestic violence; enlisting the help of another to commit any such act; entering a residence shared by the complainant and respondent or a specific part of the residence; entering the complainant’s residence or place of employment; or committing any other act as specified in the protection order.