South Africa has an excessively high domestic violence rate, and it is important to know what to do if you find yourself in an abusive relationship, or if you are being stalked or abused.
Domestic violence can take many different forms, and you may not realise that you are a victim, and that you have the right to be protected from abuse.
According to the Domestic Violence Act, the following constitutes domestic violence:
Physical abuse;
Sexual abuse;
Emotional, verbal, and psychological abuse;
Economic abuse;
Intimidation;
Harassment;
Stalking;
Damage to your property;
Entering your residence without consent (where you do not share the same residence); and
Any other controlling or abusive behaviour towards you.
What can I do if I am a victim of domestic violence?
You have right to approach the Domestic Violence Court to obtain an interim protection order. The interim order should be granted immediately and will be served upon the respondent by the police.
The order will state clearly what behaviour the Respondent must refrain from carrying out. A date is supplied in the interim court order calling the parties to court where you and respondent will ventilate your case in a private court with your legal representatives, before a Magistrate.
After hearing the case for both parties, the Magistrate will either make the interim order a final protection order, or set the interim order aside if not satisfied that a proper case has been made out due to lack of evidence.
The process of obtaining an interim order before the Respondents’ case has been heard is a robust procedure, as the Respondent is already treated as accused without having their side of the case heard - however, the Respondent may anticipate the court date to bring the case earlier to be argued on the point of a final protection order. Even so, any violation of the protection order affords you the right to approach the SAPS and make a sworn statement in respect of the violation. On the strength of your statement, the SAPS will either arrest the Respondent or issue summons to appear in the criminal court to face a criminal charge.
The process allows for the victim to get immediate protection which is often a matter of life or death and therefore the forceful nature of this process is necessary.
It is therefore vital to not abuse the court processes by bringing false claims against a person.
To obtain an immediate interim protection order, you must approach the Domestic Violence Court and make an affidavit as to the abuse you are being subjected to. This is a sworn statement which should contain your entire case, including evidence if any. You must prove what has been alleged, so it is important to be as detailed as possible when describing incidents in your affidavit.
Furthermore, recording the dates that the incidents took place can provide a vital timeline for the court. Although it is not necessary, it would be very helpful for the court when deciding to grant a final protection order to have evidence supporting the claims in the affidavit, such as:
photographs;
printouts of WhatsApp messages;
emails;
witness affidavits; and
any other evidence that may assist with your case.
In practice, the Respondent usually obtains legal representation to defend the application, considering the forceful nature of an interim protection order, and therefore you should seek assistance from us to assist with your case. Once the interim order has been made a final protection order, it never expires.
You can however apply to rescind (withdraw) the order or have the order varied, but note that the court will only grant this if it is satisfied that the application is voluntary and that you and your children are not in any danger and therefore the court can refuse such application.
It is important to understand that making false statements against the Respondent with a view to having them arrested is a criminal offence and carries a penalty of up to 2 years imprisonment. Therefore, the right of protection cannot be used vexatiously or frivolously against another person. Should a court find that the interim protection order was vexatiously or frivolously obtained, it will not grant the final protection order, and the Respondent will have the right to sue you for defamation of character.
For help with domestic violence issues, contact our family law experts at reception@mayberyinc.co.za or (012) 004 1296.