Law Clinix

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DOMESTIC VIOLENCE

Definition of Domestic Violence


Domestic violence may be committed in a in range of domestic relationships, categorized as domestic abuse, spousal abuse, family violence, dating abuse.

Domestic violence is abusive or controlling behaviour  which is the abuse of one partner against another in a social or intimate relationship such as marriage, cohabitation, dating or within the family which may cause harm or imminent harm to the safety, health or well-being of another. 

The conclusion domestic violence is a serious social evil.

Definition from the domestic violence act 116 of 1998:

'domestic relationship'

means a relationship between a complainant and a respondent in any of the following ways: 

(a) they are or were married to each other, including marriage according to any law, custom or religion; 

(b) they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; 

(c) they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time),application on behalf of child or older person i.t.o Sec 4(3); 

(d) they are family members related by consanguinity, affinity or adoption; 

(e) they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or 

(f) they share or recently shared the same residence; 

Domestic violence can also be committed against any gender by any gender in an intimate relationship such as marriage, cohabitation, dating, or within a family.

There are (4) four main categories of domestic abuse 

1. Physical Abuse 

Physical abuse covers many different types of physical violence, assault and harm, both actual and threatened.  It will include abduction, kidnapping or any other restriction of movement. 

Actual harm: assault, hitting, kicking, biting, pushing, restraining, slapping, throwing objects that causes physical suffering or bodily harm.

Potential Harm: threats of sexual abuse, controlling or domineering, intimidation, stalking.

This abuse can exits either during or after termination of a relationship.

2. Sexual abuse
 

Sexual abuse is any situation in which force or threat is used to obtain participation in unwanted sexual activity or of inappropriate sexual behaviors that cause distress or harm to an individual.

Coercing a person to engage in sexual activity against their will, even if that person is a spouse or intimate partner with whom consensual sex has occurred, is an act of domestic violence.

This abuse can exits either during or after termination of a relationship.

3. Emotional / Psychological Abuse
 

Emotional, Psychological and verbal abuse includes a range of non-physical controlling behaviors that cause emotional damage and undermine a person’s sense of well-being.  

Continuous, frequent repeated intense criticism, name calling is examples among persons who are still living witch h their perpetrators high amounts of stress, fear, and anxiety are commonly reported. 

This abuse can exits either during or after termination of a relationship.

4. Financial /monetary Abuse        
 

Financial abuse includes unreasonably denying money to someone who is financially dependent, making them beg for money, threatening to kick them out of the house and make them homeless or withholding money or taking a persons salary and not giving it  back. 

This abuse can exits either during or after termination of a relationship.

Definition from the domestic violence act 116 of 1998:

'domestic violence' means- 

(a) physical abuse; 

(b) sexual abuse; 

(c) emotional, verbal and psychological abuse; 

(d) economic abuse; 

(e) intimidation; 

(f)  harassment; 

(g) stalking; 

(h) damage to property; 

(i) entry into the complainant's residence without consent, where the parties do not share the same residence; or 

(j) any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well being of the complainant; 

FAQ 


 WHAT IS MY RIGHTS WHEN I AM BEING ABUSED?

Any victim of domestic violence has the right to apply for a protection order at the nearest police station, A South African Police member should render such assistance to you. In some circumstances you may require assistance making arrangements to find a suitable shelter or medical treatment. 

Request a Medical assessment form (J88) when you undergo medical treatment in such cases the doctor must complete the form. The (J88) can be used not only in the Domestic Violence application  and may be used in a criminal case of assault as well.

and

On the investigation on the police services if the conduct of the respondent is constituted as a criminal offence, the victim of domestic violence (applicant) has the right to request that criminal charges against the person who committed the act of domestic violence (the respondent).

A protection order Form  (Form 2) must be completed in front of a South African Police member signed by the victim and commissioned by the South African Police member. Once this has been completed this has to be taken to the local Magistrates court by the complainant.

or

you may directly apply at magistrate's court’s domestic violence section, on any day and at any time, for a protection order in the area which – 

▪   you reside, carry on business or are employed, permanently or temporary; 

▪   the respondent resides, carries on business or is employed; or 

▪   the act of domestic violence occurred. 

The application for a protection order a Form 2 must be completed and signed by the victim and commissioned by a commissioner of oaths. Make use of the (J88) and attach it to the application as supporting evidence.


WHAT IS THE STEPS AND HOW LONG WILL IT TAKE TO OBTAIN THE ORDER?


STEP 1


The clerk of the court will hand in the application for a protection order in (Form 2) with a case number and supporting affidavit(s) to the Magistrate/Court.


In your application you may request the magistrate/court to prohibit the respondent from;

  • committing any act of domestic violence; 
  • getting the help of another to commit any act of domestic violence; 
  • entering your workplace, home or the shared residence or any part thereof; 
  • preventing you or any child who normally lives in the shared residence from entering or remaining in the residence or any part thereof; 
  • Committing any other act determined by the court. 


You may request the magistrate/court not to disclose your physical address to the respondent. The court may also, in order to protect you and to provide for your safety, health and well being – 
 

  • order that the respondent pay rent, mortgage or other monetary relief (such as medical expenses and loss of income); 
  • refuse the respondent contact your children; 
  • order the seizure of any firearms or dangerous weapons in the possession or under the control of the respondent; 
  • order that a peace officer accompany you to assist you with the collection of your personal property; 
  • impose any other condition it deems reasonably necessary


The Magistrate  will consider your application.The Magistrate has three options;

  •  Granting the interim ex parte protection order (Form 4) and the clerk of the court  is ordered to serve the respondent with (Form 4) the application/supporting  affidavit(s) calling on the respondent to appear;
  •  Not Granted the interim order;
  •  An interim order referred to in section 5(2) is not issued and the clerk of the  court is ordered to serve the respondent with a (Form 5) application/supporting  affidavit(s) calling on the respondent to appear Notice to show cause why a  protection order should not be issued;


In not granting the order means that there is no eminent harm in the application or that there is no case made out.

In not granting the order but instruct the clerk of the court to issue a (Form 5) a Notice to Show cause  is ordered to serve the respondent with a (Form 5) by South African Police Service member calling on the respondent to appear and explain why a protection order should not be issued. This means a case was made out but an explanation is needed from the (Respondent).


Granting the interim ex parte protection order (Form 4) the magistrate will seal it with his/her official magistrate stamp ,with a return date,which is immediately valid.The magistrate simultaneously will, issue a warrant of arrest (Form 8) for the respondent. 

 

STEP 2:


The clerk of the court will provide the applicant/victim with the original and copy of the order and a blank return of service which has to be taken by the applicant to the South African Police Service.

The  temporary/interim order will ONLY come into effect after it has been delivered to the respondent by the South African Police Service member or the Sheriff.The South African Police Service member will complete the return of service as proof of service on the respondent and hand it back to the applicant.

This means that the respondent may be arrested if he or she fails to comply with any provision of the temporary/interim protection order and after you have given the police the warrant (Form 8) and an affidavit explaining that the respondent has breached the order AFTER the (Form 4) was served on the respondent.


Go back to the clerk of the court hand in the completed return of service that they can file this on the case file


Please note that both parties have to uphold the protection order and it is a violation of a protection order if the applicant contacts the offender. 

STEP 3:


On the return date when the applicant MUST appear in court. If the applicant failures to appear this will result in this order will be cancelled

Or

When the respondent is present to oppose means the magistrate MUST hear the case and make a decision.The purpose of the return date on the temporary/interim order is to give the respondent a chance to oppose the application to see if the victim of domestic violence (applicant) might have made a false protection order. 
 

Or 

On the the return date where the respondents fails to appear this interim order can be made a final order (default order) this means either the respondent admits committing an act of domestic violence. 

Both the applicant and respondent has the right to a legal representative. Both the applicant and respondent can ;

(a)  conducts his/her own defense;
(b)  Appoint his/her own legal representative;
(c)  Apply for legal aid

The magistrate/court will give the following explanations to the parties who are not legally represented.
 

1. In terms of section 16 of the domestic Violence Act,116 of 1998, the provisions of appeal and review contemplated in the Magistrate’s Court Act, 1994 (Act 32 of 1994) apply to any proceedings in terms of this Act.

2. The protection order is enforceable in the entire Republic of South Africa.

3. The protection order remains effective until it is set aside and the execution thereof is not automatically suspended with filing of an appeal.

4. Any contravention of a prohibition, condition, obligation or order contained in the protection order will result in a warrant of arrest for the respondent being executed and the prosecution of the respondent.  

Upon conviction of a contravention of any prohibition, condition, obligation or order contained in the protection order, the respondent will be liable to a fine or imprisonment for a maximum period of five years or both such fine and such imprisonment.

The interim protection order is made final and (Form 6) signed by the magistrate and simultaneously also sign a warrant for arrest (Form 8).

WARNING: It is a criminal offence if you knowingly give false information when applying for a protection order or when laying a criminal charge, you will be prosecuted and may be convicted. 

CAN THE RESPONDENT OPPOSE THE APPLICATION FOR DOMESTIC ORDER?

Yes if the respondent wishes to approach the court for an earlier date, Due to the effect and consequences of the protection order. 

The condition is that the respondent must give a written notice to the applicant and the court.  

FORM DOWNLOAD FOR APPLICANTS AND RESPONDENTS 

Form 2: Application for Protection Order [J480]

Form2.pdf (65.73KB)
Form2.pdf (65.73KB)

Form 5: Notice to Respondent to show cause (submit response) why a protection order should not be issued [523]

Form5_1.pdf (33.99KB)
Form5_1.pdf (33.99KB)

Form 9: Affidavit for purposes of further warrant of arrest [J591]

Form9.pdf (42.55KB)
Form9.pdf (42.55KB)

Form 10: Affidavit regarding contravention of protection order [J608]

Form10.pdf (38.86KB)
Form10.pdf (38.86KB)

Form 11: Notice to appear before court [J645]

Form11.pdf (31.62KB)
Form11.pdf (31.62KB)


Form 12: Application for variation or setting aside of protection order [J649]

Form12.pdf (41.52KB)
Form12.pdf (41.52KB)


 

Form J88: Medical assessment form.

J088.pdf (132.7KB)
J088.pdf (132.7KB)


 



Useful contact numbers

If something unpleasant has happened to you and you need some help or you want to find someone to talk to your parent or parents first.

Also try talking to your teacher or a close adult family member. If none of these people can help try to contact the telephone numbers given on the link below:

Useful numbers



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