Domestic Violence and Protection Orders: The Facts
Domestic Violence in South Africa is an all-too-common reality – and from a social and legal perspective, it is an issue that must be dealt with firmly yet sensitively.
At Witz Inc. we offer specialist legal advice that deals specifically with Domestic Violence and the related matter of Protection Orders. We understand that for someone who may be the subject of Domestic Violence (which is defined in several ways) it is not always easy to take the first step and seek legal counsel and apply for protection in terms of the law.
In order to make this process as user-friendly as possible, our team of superbly qualified specialist attorneys treats each case with empathy and insight, outlining the options available to our clients, step by step. And, because Witz Inc. takes an approach that is unlike that of many other law firms, we understand that there’s more to dealing with emotive and personal situations than just applying the legal process.
It’s also important to note that Domestic Violence matters are not always automatically focused on the alleged victim of violence. Witz Inc. also represents clients who may have been accused of Domestic Violence – for instance, in a situation where unproven allegations are made by a spouse or partner in order to gain custody of children during a divorce or separation.
There are 2 types of Protection Orders granted in South Africa, the type of Protection Order that you will need to apply for will depend on your relationship with the respondent.
What is Domestic Violence, Exactly?
While many people primarily think of Domestic Violence as only being physical abuse, the Domestic Violence Act of 1998 defines Domestic Violence as also being characterized by acts of emotional, verbal, and psychological abuse as well. These types of abuse often include harassment, stalking, and intimidation – in addition to sexual abuse and other forms of physical abuse.
Economic abuse is also included under this definition, so if – for example – a partner is entirely dependent upon another for financial support and well-being, and is forced to leave the home, the law makes provision for that person to seek economic relief if finances are being withheld.
In a Domestic Violence case where children are involved, we recommend that the matter be taken up with our Family Law experts, which is advisable in any situation where the safety and well-being of children must take priority. However, if you are unsure of whether this applies to your situation or not, simply chat to us and we will assist you in obtaining the very best legal advice and representation from our specialist attorneys. Contact us today!
How to Obtain a Protection Order in South Africa
- As a complainant, you have the right to approach the Court on an Ex Parte basis to apply for a protection order – which means that you do not have to inform the other party or have any notice served.
- The Court will usually hear the complaint and make a decision on the same day, because when dealing with matters of domestic violence or harassment, there is often the likelihood of immediate harm if this is not dealt with in an urgent manner.
- The Court will then issue either an interim protection order or interim domestic violence interdict alternatively a Notice to show cause. A return date is determined, at which time the complainant will have to appear in court to explain why the order should not be made permanent. The protection order or interdict is also served to the respondent by the police or the sheriff, and the respondent will have to appear at the next scheduled court date.
At the next court appearance, the court will make a decision about whether to make the order final or not. If the respondent has to file papers or appoint an attorney, the protection order may remain in force in order to extend protection to the complainant until the next appearance.
Responding to Harassment
The Protection from Harassment Act of 2011 deals specifically with the necessity of protecting individuals from potential harm by another party. This applies to situations where there is a perceived threat of violence or harassment, or to situations where someone is being harassed or intimidated by someone else.
The Protection from Harassment Act is distinctive in that it applies to people who may not be in a relationship, thus affording broad protection in diverse circumstances, and is more extensive in scope. It applies to situations where physical, mental, psychological, or economic harm is being perpetrated or threatened, as well as sexual harassment or other types of harassment – particularly via social media including Facebook, Twitter, Instagram, Tiktok and others or on communication platforms like WhatsApp, Telegram and others.
If you are the target of harassment, you have the right to apply for an interdict which prohibits the harasser from engaging in further harmful behaviour. If the respondent is unknown (for example, someone interacting anonymously in the online space), the Act makes provision for investigation by the State in order to establish the identity of the harasser.
- The respondent is then served with an interim order or final order and is legally required to comply.
- If the respondent breaches the terms of the order, the complainant can then apply for a contempt-of-court ruling in cases where the matter does not constitute an immediate risk to the complainant.
- If the respondent breaches the terms of the order, the complainant can then apply for a contempt-of-court ruling in cases where the matter does not constitute an immediate risk to the complainant. If the complainant is at immediate or imminent risk of harm, then a warrant of arrest is issued, which the complainant can take to the police closest to the area where they are likely to be at risk, and the respondent could be taken into custody. The respondent will then appear in court on a charge of contempt of court, or infringement of the order, and will face the civil or criminal penalties imposed by the Court.
Want to find out more about domestic violence and protection orders?
If you require assistance in a Domestic Violence-related matter, please contact us and our team will assist you with expertise, empathy, and professionalism.
