South Africa is rife with violence, especially against woman and children. Victims often feel like they have no way out, due to being financially or otherwise dependent on the perpetrator.
Thankfully, our law places various remedies at the disposal of these victims. In addition to the criminal charges which may be instituted, victims can make use of the provisions of the Domestic Violence Act (Act 116 of 1998) in order to obtain urgent relief.
The Act creates a process with which victims of domestic violence can approach the court and obtain a court order against an abuser with whom they are in a ‘domestic relationship’.
- What is a domestic relationship?
The Domestic Violence Act defines it as a relationship between persons where they:
*are or were married, are or were in a relationship similar to a marriage, are engaged, ‘dating’ or in some intimate relationship;
* have a child together or have parental responsibilities towards a child;
* share a residence, or are somehow related to one another, whether it be by blood, due to adoption, or due to marriage (family-in-law).
Even a perceived romantic relationship (where the abuser believes or pretends to be in a relationship with the victim) qualifies as a ‘domestic relationship’ and allows victims to seek protection.
- What qualifies as ‘domestic violence’?
This is wide-ranging and includes:
* sexual, physical, verbal, emotional and psychological abuse;
* intimidation, stalking, damage to property, entering a residence without consent (where the parties don’t share a residence);
* any controlling or abusive behaviour which harms or may cause imminent harm to the victim.
Victims who depend financially on the abuser are also protected. The Domestic Violence Act recognises ‘economic abuse’. This is the unreasonable deprivation of financial resources to which the victim is entitled or requires out of necessity.
- How do victims get help?
Victims can apply for a protection order from their local magistrate’s court, setting out in an affidavit the domestic violence that is being suffered and requesting the necessary relief.
Victims who are minors may be assisted by a parent or guardian, but may also apply without assistance. If the victim is not able or willing to personally lodge the application, certain persons, for instance a social worker or police officer, may with written consent do so on his or her behalf.
The court will consider the application and if it considers it necessary, immediately issue an interim protection order.
The alleged abuser will receive notice of the application (and interim order, if one was granted) and be given a date to attend court and respond to the allegations.
- How can the court order protect you?
The court has wide-ranging powers, and may make an order:
* prohibiting the abuser from committing any act of domestic violence;
* prohibiting the abuser from entering the victim’s residence (or certain parts of a shared residence) or workplace;
* That dangerous weapons in the possession of the perpetrator be seized;
* That the police must accompany the victim to collect his or her property;
* That the abuser must pay emergency monetary relief to the victim to cover medical, accommodation, household or other expenses.
- What if the protection order is not complied with?
This constitutes a criminal offence. The court will provide a warrant of arrest, which will enable the police to take the abuser into custody.
- What if I am not in a ‘domestic relationship’ with the abuser?
In this event the Domestic Violence Act will not apply. However, the Protection from Harassment Act (Act 17 of 2011) is still at the disposal of the victim. This Act provides similar protection and grants similar powers to courts as set out in the Domestic Violence Act.
It is high time that abusers realise their time is up. Should you be falling prey, contact your local court’s domestic violence office or an attorney for urgent assistance.
Article compiled by Francois de Kok for Juan Kotze Attorneys, which may be reached on 011 892 1019, francois@therescueshop.co.za or juan@therescueshop.co.za
