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Understanding the different types of domestic abuse and the procedure that should be followed in obtaining a Protection Order

This Article attempts to provide the reader with a comprehensive understanding of protection orders in the South African law. In this article concepts such as the definition of domestic violence and harassment, the scope and ambit of the domestic violence act and the procedure that should be followed to obtain a protection order, will be discussed.

Definition of domestic violence and harassment:

The Domestic Violence Act 116 of 1998 (hereinafter referred to as “the Act”), provides the following definition for domestic violence:

Domestic violence is the conduct of a person where such conduct harms or may cause imminent harm to the safety, health, or wellbeing of a complainant. This conduct includes, physical abuse, sexual abuse, emotional – verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into a complainant’s residence – without prior consent and any other controlling or abusive behaviour towards a complainant.

The Act further elaborates on harassment, by providing the following definition for harassment:

Harassment entails the engagement of a pattern of conduct that induces fear of harm to a complainant. This conduct includes the following three promises:

Firstly, the repeated observation “watching” or loitering by a person outside or near the building or place where the complainant resides, works, carries on business, studies, or happens to be. 

Secondly, repeatedly making of phone calls to a complainant, or instructing other people to do so, irrespective of whether a conversation ensues.

Thirdly, repeatedly sending, delivering, or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail, or other objects to the complainant.

The scope and ambit of the Act:

In the modern era, people are often to believe that domestic violence is limited only to physical abuse, sexual abuse, and intimidation. However, the act provides a comprehensive understanding on all the different types of domestic violence. A few of the most important and overlooked forms of domestic abuse are arguably economic abuse and emotional, verbal and phycological abuse, as these forms of abuse are often more difficult to prove.

For conduct to be considered as abuse under the Act, the conduct must harm the complainant, or cause imminent harm to the safety, health, or wellbeing of the complainant. By considering the latter, the phrase “harm to the wellbeing of the complainant” can be seen as a “catch all ground” which a complainant can use to obtain the necessary relief, if the complainant can prove that the conduct of a person is harming (physical , sexual , emotional ,verbal and psychological , economic , intimidation, etc.) or might cause imminent harm to their wellbeing. The court will use their discretion in determining if the wellbeing of a complainant is being harmed or will be harmed imminently.

A complainant can utilize the above ground to successfully obtain relief against a person for any forms of abuse which are not only limited to physical harm.

Procedure that should be followed:

To initiate the procedure a complainant should go to the nearest police station and complete a document called the “Notice to complainant in a case of domestic violence”. Any person who has knowledge of the abuse or who is a witness of the abuse should complete supporting affidavits to confirm the abuse of the complainant. After the complainant and witnesses have completed the application and the supporting affidavits, these documents should be handed to the clerk of the court, where the court will consider the application immediately.

If the court is satisfied that the complainant is suffering abuse, of any nature, the court will issue an interim protection order. This order will provide the complainant with immediate relief against the abuser. The interim protection order should then be served on the abuser/respondent by the SAPS. As soon as the interim protection order has been served, it becomes enforced.

However, the interim protection order is only temporary, the court will provide a date to the complainant and to the abuser/respondent on which both parties should attend court. On this day, the court will consider the arguments of both parties and determine whether a final protection order should be granted.  If the abuser/respondent does not attend court on the specified date, the court could grant the final protection order. On condition that the court is satisfied that there is enough evidence that the abuser/respondent has committed any form of domestic violence and that the abuser/respondent has been properly notified of the date on which they should attend court.

If the final order is granted, the abuser/respondent will be prohibited from contacting the complainant in any manner and be prohibited from entering the residence or workplace of the complainant and/or to comply with such orders as were made by the court.

The Act is designed in such a manner that a complainant can obtain immediate relief, prohibiting the conduct of a party until the court can conduct a thorough investigation.  Protection orders can play a vital role in the safety and security of all people in South Africa, especially in circumstances where abuse is not as blatant as physical abuse.