As our country sadly has one of the highest incidences of domestic violence in the world, we at RBA Attorneys are here to help. The Domestic Violence Act 116 of 1998 was implemented in 1998 to deal with domestic violence in South Africa.
The main aim of the Domestic Violence Act 116 of 1998 is to provide people experiencing domestic violence with maximum protection of the law. This is done by creating legal consequences for domestic abuse and obliging law enforcement bodies such as the South African Police Service to protect victims. The Act also provides for the obtaining of protection orders by victims of domestic violence.
This protection order can be obtained by men, women or children who might find themselves in a domestic violence situation. All the Act requires is that the victim be in a relationship with the abuser.
The abuser can be anyone that you currently or previously live or lived with and that includes family members, intimate partners, and others.
Domestic abuse can include:
· physical abuse;
· sexual abuse;
· emotional, verbal, and psychological abuse;
· economic abuse;
· damage to property;
· entry into property without your consent;
· any other controlling or abusive behavior.
It is also known as a restraining order or domestic violence interdict. It is a court order issued at the victim’s request ordering an abuser to stop the abuse. It can apply whether the abuser committed the abusive act themselves or if they got someone to help them commit such acts.
If the abuser disobeys a protection order, the Act makes it clear that the South African Police Service must come to the victim’s assistance. The police will arrest the abusers as he/she will be contravening a court order. RBA Attorneys can assist in getting a protection order for you.
Who can apply for a protection order in South Africa?
The complainant (the person being abused) can apply for a protection order.
If the complainant is a child, she/he can apply for a protection order on his/her own and does not have to be assisted by a parent or a guardian.
It is also possible for a person to make an application for a protection order on behalf of the complainant. This means that any person who has an interest in the wellbeing and safety of the complainant can make an application. If the complainant is older than 18 years of age, the written consent of the complainant is required to make an application on his/her behalf.
What happens after an application for a protection order has been submitted?
The clerk of the court will take the application to a magistrate. If the complainant needs urgent protection (such as where his/her life may be in danger), the magistrate must issue an interim protection order.
An interim protection order is a temporary order that must be delivered to the respondent (the abuser). The interim protection order will inform the respondent to appear in court on a future date. The complainant must then appear in court on the said date.
A hearing will be held at court where the respondent will have to provide reasons why the interim protection order should not be made a final order. If the court did not grant an interim protection order, the complainant and respondent will be informed to appear in court on a specified date where a hearing will be held regarding the application for a protection order.
During the hearing, the court will consider all the circumstances of the matter, such as the facts relating to the domestic violence and any evidence in support thereof, before making a final decision. If a final protection order is granted, the clerk of the court must provide certified copies of the protection order to the relevant police station, the complainant, and the respondent.
A final protection order in South Africa remains valid until it is set aside or cancelled by court.
How can a protection order be enforced?
If the court grants an interim or final protection order, a warrant of arrest will also be issued and provided to the complainant. If the respondent breaches the terms and conditions set out in the protection order, the complainant must report the breach to the police and the respondent can be arrested in terms of the warrant of arrest.