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01. What is domestic violence?

Domestic violence is any controlling or abusive behaviour that occurs in a social relationship and which harms, or may cause imminent harm to the safety, health or well- being of the complainant.

The abuse is generally carried out with a purpose, the purpose being to control and intimidate the victim. There is usually a pattern of behaviour whose repetition provokes fear. Fear is used to control the victim further.

Domestic violence is often concealed and is frequently unpunished. Most domestic violence is directed by men against women, but it can and does occur by women against men and in same-sex relationships.

02. Who is a complainant?

A complainant is the victim of abuse and the person needing protection. The complainant is also referred to as the applicant and is the person who brings the application for a protection order. The law makes provision for persons other than the complainant to seek a protection order. These include a parent, counsellor, a health service provider, a member of the police, a social worker, a teacher or someone who has a material interest in the well- being of the complainant.

The law of South Africa that deals with domestic violence entitles everyone to be protected from violence. This means that anyone can go to the court or the police for assistance and have the same right to assistance or protection regardless of whether you are a South African citizen, an asylum seeker or someone with leave to remain in South African as a spouse, student or worker.

03. Who is a respondent?

This is the abuser and the person from whom the complainant needs to be protected.

04. Types of domestic abuse

4.1 Physical abuse

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

4.2 Emotional / Psychological abuse

Emotional and psychological abuse includes a range of non-physical controlling behaviour that causes emotional damage and undermines a person’s sense of well-being. This form of abuse is a pattern of degrading or humiliating conduct towards a complainant, including-

4.3 Sexual abuse

Sexual abuse covers a range of inappropriate sexual behaviour that causes distress or harm to an individual. Sexual abuse can be actual or threatened and causes physical and emotional damage. Lack of consent is an indication of sexual abuse as is forcing someone to engage in sexual acts that they are not comfortable with.

4.4 Financial 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 making them homeless and destitute, withholding information about welfare benefits and  taking a person’s earnings without consent.

4.5 Intimidation

Intimidation refers to threats which cause the complainant to feel fearful. Fear is a key aspect of abuse and it is generally how the abuser controls the victim. Fear creates a feeling of powerlessness on the part of the victim and creates a power imbalance in the relationship.

4.6 Harassment

Harassment means engaging in a pattern of conduct that causes the complainant to fear harm. These include:

4.7 Stalking

Stalking means repeatedly following, pursuing or accosting the complainant.

4.8 Damage to property

Damage to property means the deliberate damaging or destruction of property belonging to a complainant or which the complainant needs.

4.9 Other controlling or abusive behaviour towards a complainant.

Domestic abuse may be any type of 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.

05. How does the law protect a victim of domestic violence?

The Domestic Violence Act 116 of 1998 allows a complainant to obtain a  protection order from the court to protect her/him from future abuse. A protection order is a court order which forbids an abuser from doing certain things, such as being violent, or is ordered to do certain things, such as leave the home or not have any contact with the complainant.

The Act provides the following:

  1. The complainant may approach the court for a protection order.
  2. The complainant does not need the services of an attorney as assistance is given throughout the process by the clerk of the court.
  3. The court, by means of a protection order, is able to make a wide range of orders to ensure that the complainant is protected from an abusive situation.

06. The purpose of the protection order

The main purpose of the protection order is to prevent future abuse or violence. The protection order cannot solve domestic problems but it provides a breathing space so that possible solutions can be found. The respondent will be prohibited from committing certain types of abusive behaviour and may be ordered to do certain acts e.g. pay the mortgage bond or not have any contact with the complainant.

The overall purpose is to protect the victim of domestic violence, uphold the respect for the law and show that society will not sit idly by in the face of domestic abuse.

07. Will the protection order stop domestic violence?

In some cases the abuse will not cease. The protection order does not address the underlying problems in a relationship. But the complainant can approach the police to have the respondent arrested if there is no compliance with the protection order. Very often the threat of arrest is enough to prevent further abuse. But if the abusive relationship is likely to continue the complainant should be made aware of other alternative living arrangements. By breaking the cycle of violence, even only on a temporary basis, the complainant will have an opportunity to assess the future.

08. In an emergency

TopIn an emergency the police can be approached for assistance. The police will attend the scene of the incident to protect the complainant from further abuse or violence and/or arrest the person responsible. The complainant may also lay a criminal charge at the police station and/or approach the court for a protection order.

A complainant does not have to lay a criminal charge to be able to apply for a protection order.

The police may not refuse to register a complaint of domestic violence. The complainant also has a right to lay criminal charges at any stage and this right does not fall away when application is made for a protection order.

The complainant is entitled to use three processes at the same time:  a criminal charge, a civil claim and a domestic violence enquiry (protection order).This is possible because each of these processes has a different purpose.  A criminal charge may result in a fine or imprisonment and a criminal record. A civil claim is used when the complainant wishes to obtain compensation for the injuries she suffered (such as medical expenses) as well as to damage to property. The protection order is to ensure protection against future harm.

09. Who can a complainant obtain a protection order against?

The complainant must be in a domestic relationship with the respondent before a protection order can be granted. The complainant is in a domestic relationship with the following:

The complainant is not in a domestic relationship with the following persons:

If the complainant is not in a domestic relationship with the respondent then a protection order under the Protection from Harassment Act 2011 may be applied for.

10. Which court does the complainant approach for a protection order?

The application is made at the court within the area in which:

11. The application process

TopThe complainant can approach the police station or the court for assistance. In most cases the complainant first seeks help from the police.

The police station

The court

 12. Remedies available to a complainant

Main orders prohibiting the respondent from:

Main orders ordering the respondent to:

Additional Orders.

13. How is the protection order served on the respondent?

The urgent (interim) protection order and the notice to show cause (where the matter is not urgent) is served on the respondent by the police or the sheriff of the court. Once the documents have been served the clerk of the court will receive proof of this fact and then must ensure that the complainant receives:

 

A warrant of arrest must be authorised as soon as an interim or final protection order is granted. The warrant of arrest, in the case of an interim protection order, is suspended until proof of service is received.

A complainant is only protected once the interim protection order has been served on the respondent.

14. Difference between an interim and final protection order.

An interim protection is an urgent order and only becomes effective when it is served on the respondent. Once the clerk of the court receives proof of service the complainant will obtain the warrant of arrest from the clerk of the court.

A final protection order becomes effective as soon as it is granted by the court. The clerk of the court may immediately hand the complainant a warrant of arrest.

An interim protection order is a temporary order and if it is not extended on the return date (the date set down for the court hearing) it will lapse. A final protection order never lapses. It may however, on the request of one of the parties be set aside by the court.

Both types of protection orders offer the complainant protection from domestic abuse. Once the complainant comes into possession of the warrant of arrest, he/she may hand it over to the police should the respondent breach any condition in the protection order.

15. What happens if the respondent breaches the protection order?

The interim and final protection orders contain the details of the conduct that the respondent is prohibited from doing or conduct that he/she is obliged to do. A respondent who breaches a protection order may be arrested and sentenced to a fine and/or imprisonment or both.

In the event that a respondent contravenes a prohibition, condition, obligation or order contained in a protection order the complainant may also:

TopIf the complainant alleges that the respondent has breached the terms of the protection order, then the complainant makes an affidavit at the police station. If any member of the SAPS is of the opinion that there are reasonable grounds to suspect that the complainant will suffer imminent harm due to the alleged breach, the respondent must be arrested.  The harm suffered need not be physical harm. It can also be psychological, sexual, emotional, stalking, intimidation or economic.

If the SAPS are of the opinion that the complainant will not suffer imminent harm as a result of an alleged breach, then the SAPS must serve a Notice on the respondent.  This Notice instructs the respondent to appear in court on the next court day on a charge of contravening the protection order.

16. Explanation of some of the remedies available

16.1 Emergency monetary relief

The court may instruct the respondent to pay the complainant a sum of money as emergency monetary relief. This order has the effect of a civil judgment. This means that should the respondent fail to pay the money that the complainant will be able to apply for a warrant of execution and attach assets belonging to the respondent to pay the amounts set out in the protection order for the emergency monetary relief.

The complainant must obtain a certified copy of the judgment (CCJ) and institute the civil proceedings in the magistrate’s court. This copy is obtained from the clerk of the civil court.

16.2 Rent or mortgage payments

The court may instruct the respondent to pay rent or mortgage payments. In the event that the respondent fails to comply with the instructions the complaint will be able to institute civil proceedings for the recovery of such payments.

This order, unlike an order for emergency financial relief, does not have the effect of a civil judgment. This means that the complainant will have to obtain a civil judgment before applying for a warrant of execution.

16.3 Maintenance

The court may instruct the respondent to pay the complainant an amount of money as maintenance. In the event that the respondent fails to comply with the instructions the complaint will be able to institute civil proceedings for the recovery of such payments.

In appropriate cases the court may not refuse to assist the complainant to obtain emergency monetary relief merely because the remedy of maintenance is available. An order for emergency monetary relief must be granted and the complainant must apply for maintenance. Once the maintenance order is granted then the emergency monetary relief order is no longer effective.

16.4 Eviction

The court may prohibit the respondent from evicting the complainant from the shared residence.  In the event that the respondent fails to comply with the order and evicts the complainant, the complainant will be able to bring an interdict in the form of a mandament van spolie in the civil court.

17. What happens if the complainant loses the warrant of arrest?

TopThe clerk of the court must issue the complainant with a second or further warrant of arrest if the complainant files an affidavit stating that the warrant is required for  protection and that the existing warrant of arrest has been executed and cancelled or lost or destroyed.

18. The effects of domestic violence on families and society

Domestic violence challenges society at every level. Violence in families is often hidden from view and it devastates its victims physically, emotionally, spiritually and financially. It threatens the stability of the family and negatively impacts on all family members, especially children who learn that violence is an acceptable way to cope with stress or problems or to gain control over another person.

18.1 Cycle of violence

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18.2 Battered women syndrome

The phenomena called “battered women syndrome” is often found in abusive relationships.  These women learn that they cannot control their abuser’s violence and they believe that they cannot influence it or escape it. They suffer from low self-esteem, helplessness, despair, dependence, depression and flashbacks. They eventually come to believe that they are somehow to blame for the violence.  They believe their situation is hopeless and there is no possibility of escape. They believe that their abuser is all-powerful and nothing, not even the law, can stop him.

18.3 Elder Abuse

Elder abuse is often perpetrated by family members. The victim may be dependent on the abuser for a place to live or for money. Elder abuse is found in all social and economic groups, in urban and rural settings and in all religious and racial groups.  Relatives or caregivers who are emotionally or financially dependent on the victim may also be at increased risk of abusing the victim.

Elder abuse also occurs in institutions, retirement homes and other centres where the elderly reside. The perpetrators will often be members of the staff upon whom the elderly are dependent.

18.4 Children

The impact of witnessing domestic violence is detrimental to the emotional, developmental and physical well- being of children. Children are often present or hear the abuse. They witness the bruises, black eyes or broken limbs. Some children may be traumatised and need intensive therapy while others may require removal from the situation and support.

Many children exhibit signs of post traumatic stress disorder after witnessing domestic violence. Symptoms may include inability to sleep, bedwetting, anger acted out through temper tantrums or directed inward and manifested by withdrawal or disassociation. As children grow older, they may experience feelings of guilt for not protecting the victim and may turn to drugs or alcohol. School-aged children tend to have poor academic performance, are absent frequently and may have behavioural problems or withdraw and disassociate.

TopStudies show that living with domestic violence increases children’s risk of encountering the juvenile justice system and have a 6 times higher likelihood of attempting suicide, a 24% greater chance of committing sexual assault crimes, a 74% increased incidence of offending and a 50% increased chance of abusing alcohol or drugs. Children who grow up in homes where domestic violence occurs are also more likely to abuse others or become victims of abuse as adolescents or adults.