Reporting Domestic Violence And Obtaining A Protection Order

1. In the eyes of the law, what constitutes of ‘Domestic violence’?

 In general, domestic violence may be an on-going pattern of coercive control which may increase in severity over time. In terms of the applicable legislation, domestic abuse may take any one of the following forms:

• Physical Abuse which may include shoving, slapping, punching, kicking, throttling, biting.
• Assault with objects such as a gun, knives or any other dangerous weapon.
• Sexual Abuse such as rape, attempted rape, indecent assault. (NB. Rape can occur between husband and wife as well if it is non-consensual).
• On-going verbal abuse with or without sexual slurs.
• Emotional, Verbal and Psychological Abuse such as constant insults, ridicule or name calling.
• Repeated threats of violence or death to cause emotional pain.
•  Economic Abuse which may include selling of shared property e.g. livestock, matrimonial house without the consent of a complainant, accessing a joint bank account for personal use without the consent of a complainant.
• Intimidation could be sending written or verbal death threats to a complainant, sending beheaded dolls, small coffins, dead flowers or dead pets to a complainant.
• Harassment which may include repeatedly watching a victim outside or near his/ her house, workplace, school or business premises or any place. It also occurs where the perpetrator repeatedly phones a victim or causes any other person to phone whether or not the caller speaks to a complainant.
• Stalking for example constantly approaching a victim and asking or demanding to talk to a complainant against his/her will.
• Damage to property may include acts of breaking a window to gain entry into a complainant’s house and cutting, breaking or damaging in any other manner shared furniture.
• Unauthorised entry into the complainant’s residence may include. Where one uses a duplicate key to gain access, or enters your premises without your permission.

2. How does one go about reporting domestic violence perpetrated against themselves?

• The complainant must make an affidavit and complete an application form available at the court.
• Supporting affidavits by persons who have knowledge of the matter in question, may accompany the application.
• These documents must be handed to the clerk of the nearest court. The court will consider the application immediately.
• If the court is satisfied that there is sufficient evidence that the suspect is committing or has committed an act of domestic violence/harassment and unnecessary hardship may be suffered by the complainant as a result of the act, the court will issue an interim protection order against the respondent.
• The purpose of this interim protection order is to provide immediate protection to the complainant.
• The interim protection order has no force or effect until it has been served on the respondent.
• The court is also required to issue a warrant of arrest for the respondent but the execution of the Warrant of arrest is suspended, provided that the Respondent does not breach the conditions of the interdict. A breach of the protection order requires that the respondent must be arrested by the police immediately. 
• The interim protection order is not a final order from the court, but a temporary order which grants immediate relief until the return date (the date on which the applicant and the respondent, after being given due notice, are to appear before court to have the protection order made a final order). On this return date, the respondent is afforded the opportunity to present to the court reasons why the protection order should not be made final.  
• If the respondent does not appear in court on the return date, but the court is satisfied that proper notice has been given to the respondent and that there is sufficient evidence that the respondent has committed or is committing an act of domestic violence/sexual harassment, the court may make a final order on the return date.

3. In order to report abuse that is happening to someone else, how do they go about doing so?

An application for a protection order may be brought on behalf of the complainant (with the complainant’s consent where the victim is an adult) by any other person who has an interest in the well-being of the complainant. This includes but is not limited to a counsellor, a health service provider, a social worker, a teacher or a member of the SAPS.

The procedure whereby an application is made by a third party is the same as noted above however where the application is brought on behalf of a complainant by another person, the affidavit must set out or contain the grounds on which such person has a material interest in the wellbeing of the complainant, the occupation of such person and capacity in which such person brings the application. 

4. Is evidence required when reporting these cases, if so, what type would be needed?

The court must be provided with all the relevant information in the affidavit, for example, details of the incidents of abuse, date, place and nature of the last incident. The application may also be supported by affidavits by third parties confirming the complainant’s situation or incident. This is not a mandatory requirement but will add weight in granting the order.

5. Can the person reporting domestic violence against someone else remain anonymous?

An application for a protection order is done by way of affidavit. Hence this application may not be done anonymously.

6. How does one go about obtaining a protection order against an abuser?

A complainant may apply to court for a protection order by way of a form available at the local police station This application must be made by way of an Affidavit which must state the facts on which the application is based, the nature of the order applied for and the name of the police station where the complainant is likely to report any breach of the protection order applied for.

7. What does the protection order entail?

An interim protection order will request a respondent (a person who is committing the abuse) not to abuse an applicant in a specific manner alleged in an affidavit, not to commit any specified act of domestic violence/sexual harassment, not to enter the joint residence or entering a specific part of the residence, entering the victim’s residence if they are not living together, not to entering the victim’s place of employment/office and/or not to have contact with a child or children, if it is in the best interest of the child. A court may even order the police to seize a respondent’s firearm if he/she has made any threat to the complainant’s life.

8. If the perpetrator goes against the stipulations set out in the protection order, what is the next step that can be taken by victim?

The complainant/victim should approach the South African Police Services immediately.

When a domestic violence interdict is issued, a warrant for the arrest of the respondent is issued simultaneously, but held over subject to compliance by the respondent of the order. In other words, if the respondent breaches the terms of the order, he or she may be arrested.

9. Is there any other important information that can be of use to someone suffering through domestic violence?

To apply for a protection order under the Domestic Violence act, the victim must show that s/he is in a domestic relationship.  The following are considered to be domestic relationships:

• You currently live, or lived in the past, under the same roof with that person in an intimate relationship (like boyfriend or girlfriend), in civil marriage, or a customary marriage.
• You currently live under the same roof with that person, or you did so recently.
• You do not live with the person, but you are married to or are in an intimate relationship with the person.
• The person is a family member of yours (like your father, cousin, son or aunt) or a family member of your current husband or partner, or ex-husband or partner.
• You and that person share responsibilities for a child. You do not need to be the natural, adoptive parents or legal guardians of the child, but could be.
• The person believes or thinks that they are in an intimate relationship with you.

The application must be made at the court within the area in which:

• The complainant permanently or temporarily resides (even for one night)
• The complainant carries on a business or is employed
• The respondent resides or carries on a business or is employed
• The cause of action (the incident) arose

Take along affidavits from any witnesses to the acts of domestic violence, photographs of injuries and medical reports.

In the absence of a protection order, nothing prevents a victim (eg. if the person has been assaulted) from approaching the police to lay a criminal charge against the perpetrator and have him/her arrested.