Acts of domestic violence against vulnerable people, women, children and the elderly is a universal problem which occurs across all economic, ethnic, religious, gender and cultural groups. It is an unfortunate reality that in this country, as in most other countries, the physical and sexual abuse of women, children and the elderly has an extremely low investigative, prosecution and conviction rate as compared to other criminal offences. This is by and large due to the fact that domestic violence generally takes place within the four walls of the home and can be, especially in the case of children and the elderly be easily misdiagnosed or not detected at all. Additionally, role players to whom reports of violence may have been made may not have the necessary expertise to handle such matters and may accordingly knowingly and unknowingly serve to merely discourage a victim or the victim’s family from taking a matter further.
It is a well known fact that the involvement of the Criminal Justice System in matters of domestic violence can become an extremely traumatic experience for the victim, especially if the relevant role players have failed in their duty to take proper statements concerning the occurrence of the offence, alternatively have not kept the victim and/or the victim’s family informed of developments in the case, or have failed to collect the necessary evidence and have overlooked the need for proper preparation of the victim prior to the criminal trial.
The aim of this article is accordingly to set out the procedure to follow in order to access the necessary protection from the courts against an abuser.
THE NATURE OF DOMESTIC VIOLENCE
Domestic violence can be broadly defined as the perpetration of violence against a person (or persons) sharing a familial relationship with the perpetrator. Domestic violence is no doubt an insidious social ill which attacks the very fibres upon which the health of our nation is built. In 1998, the South African government enacted the Domestic Violence Act to counter the increasing incidence of domestic violence. This piece of legislation is far reaching and covers areas and relationships previously not protected by the law, such as persons in same sex relationships, dating relationships and the elderly.
DEFINITION OF DOMESTIC VIOLENCE
The Domestic Violence Act (hereinafter referred to as ‘the Act’) defines domestic violence as including the following :- any act or threat of physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the residence of a person sharing or having shared a domestic relationship with the perpetrator without that person’s consent, where the parties do not share the same residence; or, any other controlling or abusive behaviour.
The Act defines these categories of abuse as follows: –
- Physical Abuse means any act or threatened act of physical violence ;
- Sexual Abuse means any conduct that abuses, humiliates or degrades or otherwise violates the sexual integrity of the person;
- Emotional, verbal and psychological abuse means a pattern of degrading or humiliating conduct towards the person including repeated insults, ridicule or name calling; repeated threats to cause emotional pain; repeated exhibition of obsessive compulsiveness or jealousy which invades the person’s privacy, liberty, integrity or security ;
- Economic abuse includes the unreasonable deprivation of economic or financial resources to which a person is entitled under law (i.e. spouse) or which the person requires out of necessity or, the unreasonable disposal of household effects or property in which the person has an interest ;
- Intimidation means uttering or conveying a threat, or causing the person to receive a threat which induces fear;
- Harassment means engaging in a patter of conduct which induces a fear of harm in a person including repeatedly watching or loitering outside of a persons residence, place of work, business or the place where the person happens to be; repeated telephone calls to the person irrespective of whether conversation ensues or not ; repeatedly delivering or causing the delivery of letters, e-mails facsimiles or other items to the person
- Stalking means repeatedly following, pursuing or accosting the person;
- Damage to property means the intentional damage or destruction of property belonging to the person or in which the person has an interest.
PERSONS WHO MAY APPLY FOR AN ORDER IN TERMS OF THE D.V. ACT
- Persons who are or were married to each other in terms of any law, custom or religion ;
- Person of the same or opposite sex who live or lived together in a relationship the nature of a marriage ;
- Persons having or exercising parental responsibility over a child ;
- Person who are family members whether by consanguity, affinity or adoption ;
- Persons who are or were in an engagement, dating or customary relationship ;
- Persons who share or recently share the same household.
THE PROCEDURE TO FOLLOW IN ORDER TO OBTAIN A PROTECTION ORDER
A domestic protection order can only be granted by a Court. The application for the domestic protection order can be made at any magistrate’s court having jurisdiction over the area: –
- where the complainant resides (temporarily or permanently) or works;
- where the Respondent resides or works;
- where the act or acts of domestic violence took place.
The Act makes provision for the granting of domestic protection orders outside court hours and on days which are not court days. The court will only grant an order in such instance if it is satisfied that the complainant would suffer undue hardship if the application is not dealt with immediately. The procedure to follow for the obtaining of an after-hours order is to contact the nearest police station who will have the contact details of the magistrate and prosecutor on duty.
The Complainant will be required to complete a prescribed form setting out the nature of the domestic violence against which he or she requires protection as well as the nature of the domestic relationship between him or herself and the respondent. Supporting documentation such as witness reports, medical evidence and statements from persons have knowledge of the domestic violence should where possible be attached to the application. Given the nature of abuse and the fact that it generally takes place behind closed doors in the absence of outsider presence, the absence of supporting documentation will not disqualify the complainant in obtaining the necessary protection order.
The application for the protection order can be made on behalf of the complainant by a third party including among others a social worker, counsellor, health service provider, or a relative. Where the application is made by a third party, the complainant’s written consent hereto must be handed to the court. No consent is required where the complainant is a minor, mentally retarded, or unable to provide the requisite consent. A minor may approach the court for an order without the consent of his or her parent or guardian.
Once the application has been completed, the clerk of the court will submit the application papers to the relevant magistrate who will, in the event that he or she is satisfied that the respondent is committing or has committed the acts of domestic violence and that the complainant will suffer hardship if an order is not immediately granted, grant an interim protection order against the respondent. Where the court is not satisfied, for whatever reason, as to the above, the court will notify the complainant and the respondent to attend court on an allotted date for further decision hereon.
INTERIM AND FINAL PROTECTION ORDER
An interim protection order is of a temporary nature only and a date will be set by the magistrate and recorded on the interim protection order for a return date where the respondent will be given an opportunity to show the court why a final order should not be made in the complainant’s favour.
The clerk of the court will arrange for a copy of the application papers together with a copy of the interim protection order to be served by the sheriff, or a member of the South African Police Services on the respondent. Service by the police is normally only required where there is a likelihood of resistance to service. The complainant is responsible for the costs of service unless, at the time of the making of the application, the complainant shows to the court’s satisfaction that he or she cannot afford the costs of service.
The interim protection order is of no force or effect until such time as the order has been served on the respondent. As soon as service has been effected the court will furnish the complainant with a certified copy of the interim protection order as well as an original warrant of arrest against the respondent in the event of the respondent’s violation of the terms of the interim protection order. On the return date, the court will consider the respondent’s evidence. Where the court is satisfied on a balance of probability that the respondent has committed or is committing an act of domestic violence, it will issue a final order against the respondent. This order will remain in force until such time as it is set aside by another court.
TYPES OF COURT ORDERS AVAILABLE IN TERMS OF THE DOMESTIC VIOLENCE ACT
Depending on the nature of the case the court can make the following orders against the respondent not to :-
- commit any act of domestic violence ;
- enlist the help of any other person to commit an act of domestic violence ;
- enter a residence shared by the complainant and the respondent ;
- enter a specified part of a shared residence ;
- enter the complainant’s residence ;
- enter the complainant’s place of employment ;
- prevent the complainant from entering any part of a shared residence ;
- The Court can also Order the seizure of any arm or dangerous weapon in the respondent’s possession ;
- The Court can also Order that a peace officer to accompany the complainant to a specified place to collect personal property ;
- the respondent can be ordered to pay emergency monetary relief to the complainant ;
- The Court can issue a refusal for the respondent to have contact with any child, or an order for contact with the child on conditions the court deems appropriate in the circumstances.
PROCEDURE FOR THE LOSS OF A WARRANT OF ARREST
Where the complainant has lost the warrant of arrest or the warrant hags been executed and cancelled, the clerk of the court is required to issue the complainant with a further warrant of arrest.
PROCEDURE WHERE THERE HAS BEEN A VIOLATION OF THE ORDER
Where the respondent has violated the terms of the order, the complainant must approach the relevant police station and hand over the warrant of arrest together with an affidavit thereto to the police for execution of the warrant. A complainant or respondent can apply for the variation or setting aside of the protection order. The court will however not grant an application by a complainant for the setting aside of a protection order unless it is satisfied that the application is made freely and voluntarily.