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Domestic Violence

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The Domestic Violence Act 116 of 1998 was passed to protect the victim of domestic violence, to uphold the respect for the law and to show that organised society will not tolerate spousal abuse. It is clear that domestic violence may impact on adults and children alike.

We shall see that the Act adopts a wide approach to the concept of a domestic relationship to include married couples as well as heterosexual and homosexual relationships

In S v Baloyi 2000 (1) BCLR 86 (CC) the Constitutional Court recognised that domestic violence is a serious problem because it is often concealed and frequently goes unpunished.

The state has an obligation to deal with the problem because section 12(1) of the constitution guarantees everyone 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 court clearly said that a balance must be struck between the need to protect family members from violence within the family and the appropriate level of protection which the Constitution affords to people against whom domestic violence interdicts have been granted.

The legislature has given the term “domestic relationship” a wide definition in order to cover all possible situations of abuse.

The definition includes:
(a) a relationship between a complainant (the victim) and a respondent (the alleged abuser) which stems from an existing or former marriage;
(b) marriages according to any law, custom or religion;
(c)the situation where persons live together in a relationship similar to a marriage, including same sex or opposite sex relationships;
(d) the parents of a child or persons who have or had parental responsibility for that child;
(e) family members related by consanguinity, affinity or adoption;
(f) engaged persons, persons in a dating or customary relationship and;
(g) persons who share the same residence.

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The definition of domestic violence includes the following:
Physical abuse, sexual abuse, emotional, verbal and psychological abuse; economic abuse, intimidation, harassment, stalking; and damage to property. Entry into the complainant’s residence without consent, where the parties do not share the same residence is also included as well as and any other controlling or abusive behaviour towards a complainant which harms, or may harm the safety, health or wellbeing of the complainant.

Domestic violence is not confined to physical abuse or harm but extends to economic abuse. For example, one spouse may withhold money for the payment of household necessaries. The Act makes provision for emergency monetary relief, that is compensation for monetary losses suffered by a complainant at the time of the issue of a protection order as a result of the domestic violence, including loss of earnings; medical and dental expenses; relocation and accommodation expenses; or household necessities;
Economic abuse is also widely defined in the Act. It includes the following:
(a) the unreasonable deprivation of economic or financial resources, including household necessities for the complainant, and mortgage bond repayments or payment of rent in respect of the shared residence;
(b) the unreasonable disposal of household effects or other property in which the complainant has an interest.

Emotional, verbal and psychological abuse means a pattern of degrading or humiliating conduct towards a complainant such as insults, ridicule or name calling, threats to cause emotional pain, repeated obsessive possessiveness or jealousy.

Harassment means engaging in a pattern of conduct that induces the fear of harm to a complainant. Intimidation means uttering or conveying a threat, or causing a complainant to receive a threat, which induces fear.
What procedure must be followed by a victim of domestic violence?
A person who is a victim of domestic violence may apply to the court for a protection order. An application for the order may also be brought on behalf of a complainant by any other person.

A counsellor, health service provider, member of the South African Police Service, social worker or teacher may also apply for a protection order, provided he or she has a material interest in the wellbeing of the complainant:

If any of these persons applies for a protection order, the complainant must give his or her written consent.

Consent is not required where the application is made by a minor; a person who is mentally retarded; a person who is unconscious; or a person who is unable to provide the required consent.

A minor, or any person acting on behalf of a minor, may apply to the court for a protection order without the assistance of a parent, guardian or any other person.

An application for a protection order must be heard by the court as soon as reasonably possible. The court may instruct the Family Advocate to investigate the situation regarding the welfare of any minor or dependent child.

If the court is satisfied that there is evidence of domestic violence; and that undue hardship may be suffered by the complainant if a protection order is not issued immediately, the court may issue an interim protection order.

A prohibition order may take various forms. It may prohibit the respondent from-committing any act of domestic violence; it may prohibit that person from enlisting the help of another person to commit any such act; prohibit him or her from entering a residence shared by the complainant and the respondent; prohibit entering a specified part of such a shared residence; prohibit entering the complainant’s residence and so on.

If the court is satisfied that it is in the best interests of any child it may refuse the respondent contact with such child; or order contact with such child on such conditions as it may consider appropriate.

Curtecy of Law24.com 

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