Legal Matters

Due to the high incidence of domestic violence in South Africa, our parliament has decreed laws to offer maximum protection for any victim of such violence. (Domestic Violence Act of 1998.) What does the Law regard as domestic violence? According to law, domestic violence covers a broad spectrum of abuse.

Due to the high incidence of domestic violence in South Africa, our parliament has decreed laws to offer maximum protection for any victim of such violence. (Domestic Violence Act of 1998.) What does the Law regard as domestic violence? According to law, domestic violence covers a broad spectrum of abuse.  

In which way can I be protected against the above mentioned behaviour? 

1. Immediate assistance by the SAPD as soon as the incident is reported, including your protection as well as arrangements for shelter and medical care if necessary.
2. Arrest of the offender by the SAPD (or another peace official) on the scene of domestic violence. (Arrest can take place without a warrant.)
3. Application by you for a protection order from the court.

Who can apply for a protection order and where does one apply?

The application could be lodged by yourself or on your behalf by somebody like a counsellor, welfare worker, teacher or member of the SAPD.  You have to give written permission for an application on your behalf, unless you are a minor or for some reason unable to give consent, e.g. mentally handicapped.

The application has to be made to the Magistrate’s Court. In accordance to law, the court situated in the area where you live, work or have a business, will have jurisdiction, as well as the area where the incident took place or the court in the area in which the other party lives or works.

What does the court take into account when a protection order is issued and what type of order can the court issue?         

The court will issue an intermediary order to you if the court is satisfied that there is enough evidence that the respondent has committed an act of domestic violence and that you could further be exposed if an order is not issued forthwith.  

Such an order can be issued without the respondent having to be present and will supply the respondent with a date on which his/her case can be made – this is why it is called an intermediary order. Please note the intermediary order is only valid from the moment on which it is delivered on the respondent, in other words the perpetrator must have knowledge of the order and what it contains.
  
The court may also decide not to issue an intermediary order immediately and may give the perpetrator notice of a date to indicate why the requested order should not be given.
What legal protection can the court give me?
The court could prohibit the alleged offender from:

• Committing any act of domestic violence
• Getting anybody else to commit such an act for him/her
• Entering the home or any part of that building that was previously shared
• Entering your workplace
• Any other act or behaviour which could lead to domestic violence

Apart from the above mentioned, the court could also issue an order which the court deems necessary to protect the complainant’s safety, health, well-being, e.g. to repossess a firearm or dangerous weapon in the perpetrator’s possession.
The court could also stipulate that the complainant has to be accompanied by a peace official when collecting his/her personal belongings.

Could you also claim for financial assistance?

Yes, after the court has considered both parties’ finances, the court could order the perpetrator (respondent) to pay the rent or bond or part of it. The court could also order him/her to pay emergency assistance.
 
What rights does the perpetrator (respondent) have?

The alleged perpetrator will be notified of a date on which he/she can contest allegations in court, which will take the form of a hearing. If an intermediary order exists, he/she will have to adhere to it word for word he/she has the opportunity to state their case.  If an order should be granted after such a hearing, the perpetrator could at a later stage apply for alteration or overturning of the order if new evidence emerges or the situation changes drastically.

What happens if the order is not obeyed?

As soon as the court issues a protection order, it issues a warrant to accompany it. As soon as the person against whom the order was issued fails to adhere to the stipulations of the order, he/she can immediately be arrested according to the warrant that already exists. Any person who fails to adhere to the stipulations of an order is guilty of a criminal offence and can be fined or jailed or both.