Are you in an abusive relationship? There is a way out
Case of Law - an expert opinion on legal matters
South Africa’s legislature has long identified the blight that is domestic violence, which plagues our country. In response to this, the Domestic Violence Act (the “Act”) provides mechanisms for relief such as protection orders.
The Act defines a domestic relationship as:
1. Persons who are, or were, married to each other, regardless of the marital regimes or whether the marriage is in terms of customary law or otherwise;
2. Persons who live together (whether same sex or not) in relationship that is similar to marriage, whether actually married or not;
3. Persons who are parents of a child or have parental rights in respect of such a child;
4. Members of a family, whether related by consanguinity, affinity or adoption;
5. Persons who are or were engaged, dating or a customary relationship, and includes a real or perceived romantic, intimate or sexual relationship;
6. Persons who have recently shared the same residence.
The Act defines domestic violence as:
1. Physical abuse;
2. Verbal, emotional and psychological abuse;
3. Economic abuse;
4. Intimidation;
5. Harassment;
6. Stalking;
7. Damage to property;
8. A person entering into your residence, when you do not share the same residence, without your consent;
9. Any other controlling or abusive behaviour.
It is common that in abusive relationships the victim will often be subjected to more than one of the above listed forms of abuse, which often leaves victims of domestic violence feeling trapped and powerless to escape the situation.
The Act recognises the, often, imbalanced nature of abusive relationships and creates a speedy mechanism for providing relief to the victim of domestic violence. It does this by establishing specialised domestic violence courts, to allow for these types of matters to be heard on a pseudo-urgent basis and the granting of an interim protection order to allow for the immediate relief for the victim and so that the court may give return date where the order can be made final after hearing the arguments by the complainant and the respondent.
The process of applying for a protection order in terms of the Act has been largely simplified to allow for unrepresented parties to obtain relief.
The process starts with the complainant (the party seeking relief from domestic violence) going to one of the specialised domestic violence courts and opening a file, which is to be accompanied by a written statement (which should include as much detail as possible). The magistrate will then read the papers and, should they deem it necessary, enquire for more details from the complainant. The magistrate will then grant an interim protection order, which will state the terms of the order (being for emergency monetary relief or the conduct that is impermissible from the respondent) which order will be served on the respondent by the local SAPS, this interim order will also provide a return date where both parties can put evidence to the court and the court can then determine whether the order is to be made final.
Article compiled by Michael Coaker – a candidate attorney at Malherbe Rigg & Ranwell (MRR).
Should you have any queries or need any advice concerning this recent issue contact MRR on 011 918 4116.
