Protection against domestic violence is a human right. It is founded on several human rights in the Constitution of the Republic of South Africa,1996 (the Constitution). Section 10 provides that “everyone has an inherent dignity and the right to have their dignity respected and protected”. This includes both physical and psychological respect to one’s dignity.
Remedies to domestic violence provided by the law
The law views domestic violence as an act that infringes upon physical and psychological respect to one’s dignity among a host of other Constitutional infringements. One of the ways that the law tries to combat domestic violence is by making it a crime under the Domestic Violence Act 116 of 1998 (the Act).
The Act aims to aid victims of domestic violence. Section 2 of the Domestic Violence Act 116 of 1998 states that any member of the South African Police Service (SAPS) must:
- at the scene of an incident of domestic violence or as soon as reasonably possible; or
- when the incident of domestic violence is reported, assist someone reporting domestic violence. This may be by filing a report and/or finding a suitable shelter and to obtain medical treatment.
Legal Definition of Domestic Violence
Domestic Violence is:
- physical abuse;
- sexual abuse;
- emotional, verbal and psychological abuse;
- economic abuse;
- damage to property;
- entry into the complainant’s residence without consent, where the parties do not share the same residence; or
- any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.
Urgent Interim Protection Order
The Act obliges the magistrates court to issue an urgent interim protection order and a warrant of arrest in the absence of and without the knowledge of the alleged abuser. This is in circumstances of domestic violence where there is a well-informed concern of imminent harm if the urgent interim protection order is not granted.
In addition, the urgent interim order is not legally valid until it is served on the alleged abuser. The alleged abuser will then have the opportunity on the return day to state reasons why the order should not be confirmed.
Approaching the Court
To obtain an urgent interim protection order, the complainant should approach the clerk of the magistrate’s court. The complainant must complete and sign an Application for A Protection Order. The court then hears the application. If the court is satisfied that the alleged abuser is committing or has committed an act of domestic violence and the complainant needs urgent protection, it must grant an interim protection order against the alleged abuser even if the alleged abuser does not know that there is a court hearing.
Serving the Interim Protection Order on the Alleged Abuser
The magistrate will inform the complainant of the contents of the order made and that the order will have to be served on the alleged abuser before it is legally binding. Service of the protection order must be effected immediately after the granting of the order, by the clerk of the court or the sheriff or a peace officer.Once the protection order has been served, the complainant will be entitled to a certified copy of the protection order and a warrant of arrest against the alleged abuser. The complainant will also be informed that a certified copy of the protection order and the warrant of arrest will be sent to a police station of the complainant’s choice. Should the alleged abuser
breach any term of the protection order, the complainant may report the breach to the police and that the SAPS will then arrest the alleged abuser.
Returning to Court to Make the Order Permanent
The complainant will also need to return to court on another date and time to make the protection order permanent. If the complainant fails to do so, the matter will be removed from the roll and the interim order will expire.
On the return date, the court must decide whether to:
- confirm the interim protection order;
- to amend the protection order;
- to set aside the interim protection order;
- to remove the matter from the roll; or
- to extend the interim protection order for a further period.
If the alleged abuser does not appear on the return date, the interim protection order must be confirmed. This is only if the court is satisfied that proper service has been effected upon the alleged abuser.
If the alleged abuser appears on the return date, the court must proceed with the hearing. This means that witnesses may be called by both the complainant and the alleged abuser or they can argue themselves before the magistrate.
Warrants of arrest
Whenever the court grants a protection order, it must make an order authorising the issue of a warrant for the arrest of the alleged abuser and suspend the execution of the warrant subject to compliance with any order imposed. Should the alleged abuser breach any:
in a protection order, the complainant may hand the warrant of arrest to any member of the SAPS. SAPS must arrest the alleged abuser for allegedly being in breach of the protection order.
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