By Ryan McDonald
Domestic Violence occurs when one of the following persons:
- Someone you are/were married to;
- Your parents/guardians;
- The father/mother of your child/children or your boyfriend/girlfriend;
- Anyone you are or have been living with even if you are not married to each other;
- Your partner of the same sex.
Does any of the following to you:
- Hurts you physically;
- Sexually abuses you;
- Degrades or humiliates you by insulting, threatening, or ridiculing you or by calling you names or repeatedly causes you emotional pain;
- Unreasonably keeps money from you, which is legally yours or is necessary for your day-to-day living, for example refuses to pay rent; sells household items that you have an interest in;
- Frightens you by threatening you;
- Frightens you by following you around, phoning you, emailing you, or contacting you over social media;
- Damages your property;
- Enters your home without your permission where you do not share the same home; and
- Any other controlling or abusive behaviour towards you, where such conduct harms or may cause imminent harm to your safety, health or well-being.
HOW CAN THE DOMESTIC VIOLENCE ACT HELP YOU?
It gives you a right to obtain a Protection Order.
WHAT IS A PROTECTION ORDER AND HOW WILL IT HELP YOU?
A protection order is an order that the court can make prohibiting a person from abusing you in any of the ways listed above. The court can also make an order preventing the person from getting help from anyone else to commit any act of domestic violence against you.
The court may also make an order, which could include any of the following:
- Removing the violent person’s gun or dangerous weapon;
- Limiting contact with any minor children if this is in the best interests of the children;
- Forcing the abuser to pay emergency monetary relief in the event of financial abuse;
- Preventing the abuser from residing in the common home or on common property.
WHO CAN APPLY FOR A PROTECTION ORDER?
- Any victim of domestic violence;
- A child that has suffered abuse. Children do not need their parent’s permission to apply for a protection order;
- If someone you care for is the victim of abuse, you may, with their permission, apply for a protection order on their behalf.
HOW DO YOU GET A PROTECTION ORDER?
A protection order is obtained from the domestic violence unit of the Magistrate’s Court. Alternatively, you can approach the Rhodes University Law Clinic for assistance. Alternatively, if it is after hours or on a weekend, you can approach the South African Police Services. Once you have approached one of these places the following steps will be followed:
- An application form will need to be completed. This application form must contain your details, the details of the abuser, and details of the abuse that has or is occurring.
- This application form will then be submitted to the clerk of the domestic violence unit at the Magistrate’s Court.
- The clerk will then take your application form to the Magistrate who will consider whether to grant an interim protection order with a return date; or whether to merely grant a return date with no interim protection order; or whether to dismiss the matter.
- The interim protection order, if granted, must then be taken to the Sheriff to be served on the person who has abused you. This interim protection order will only protect you once the abuser receives it and is only valid until the return date.
- Together with the interim protection order, you will receive a warrant of arrest, which you can use if the abuser violates the protection order.
If the abuser disobeys the protection order, you must take the warrant of arrest to the police where you will be required to make a statement. The police can then arrest the abuser.
WHAT TO TAKE WITH YOU WHEN YOU APPLY FOR A PROTECTION ORDER
- Your ID book
- Your address and telephone number
- The details of the abuser: name, address, telephone number, work details
- Doctors’ reports where necessary
- Details of any witnesses to the abuse
- Details of any children who need to be protected
- Any other relevant documentation: e.g. quotations/receipts in the event of damage to property.
WHAT IF THE PROTECTION ORDER IS BREACHED?
If the respondent breaches the Protection Order by repeating physical or verbal abuse on you in the manner described above you may file a complaint at the police station and hand in the Warrant of Arrest to the police how will then arrest the Respondent.
This decision to use the Warrant of Arrest after a breach of the Order is entirely yours. Once arrested, the Respondent will face criminal charges and be tried in a Criminal Court for breaching the Protection Order. Remember, however, that if the Court finds that the Warrant of Arrest is used maliciously (to have the Respondent arrested without just cause), then you may be prosecuted in terms of the Act. The Respondent will appear in the Criminal Court to be tried under Criminal Charges for breaching the terms of the Protection Order served on him/her.
CAN THE CRIMINAL CHARGES BE WITHDRAWN?
Once the Respondent has been arrested for a breach of the Protection Order, the Applicant may not decide to withdraw the charges. The Senior Public Prosecutor has the sole discretion to withdraw charges.
CAN YOU SET ASIDE THE ORDER?
You may at any time make an application to have the Order set aside. It is, however, at the discretion of the Magistrate as to whether or not to set aside the Order. This will mean that the Protection Order will be declared null and void.
RU LAW CLINIC HELPING YOU
Many people in Grahamstown suffer great loss or difficulty as a result of ignorance of the law. It is for this reason that the Rhodes University Law Clinic seeks to empower people with a better understanding of these laws and their legal rights to enable them to better manage their affairs.
The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to underprivileged people in most areas of law. In addition to its New Street offices, Law Clinic staff are available to clients at the Assumption Development Centre (Konongendi), Nceme Street, Joza, every Thursday from 9am-midday.
The Law Clinic also provides regular workshops on a wide range of topics in order to raise awareness of people’s rights. The workshops are conducted by staff of the Rhodes University Law Clinic at the Assumption Development Centre, Nceme Street, Joza.
For more details, please contact the Assumption Development Centre (Konongendi) or the Rhodes Law Clinic: Rhodes University Law Clinic, 41 New Street, Grahamstown.
Telephone 046 603 7656