PROTECTION ORDERS

Written by Cherise Hansen on February 16th, 2016. Posted in domestic violence

Written by Lanka Krűgel

domestic violence

It can be extremely scary and traumatizing if the person with whom you have been in a romantic relationship, starts acting abusively towards you. It often affects not only you, as the abuser’s spouse or partner, but also your children, siblings and/or parents.

The Domestic Violence Act 116 of 1998 (the “DV Act”) provides a means of obtaining protection against “domestic violence” by an abuser. The DV Act applies where a “domestic relationship” exists between the abuser and the victim.

A domestic relationship is one were the abuser and victim:

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

(b)    live or lived together in a relationship in the nature of marriage, even though not legally married;

(c)    are the parents of a child;

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

(e)    are or were in an engagement, dating or customary relationship; or

(f)    share or recently shared the same residence;

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 victim’s residence without consent, where the parties do not share the same residence; or

(j)           any other controlling or abusive behaviour towards a victim,

where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the victim.

Victims are often unaware that they can obtain a protection order for “economic abuse” where the abuser unreasonably deprives the victim, or causes the victim to be deprived of, finances. Economic abuse includes situations where the abuser unreasonably disposes of household furniture and effects in which the victim has an interest.

“Emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a victim, including –

(a)          repeated insults, ridicule or name calling;

(b)          repeated threats to cause emotional pain; or

(c)           the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security;

“Harassment” means engaging in a pattern of conduct that induces the fear of harm to a complainant including –

(a)          repeatedly watching, or loitering outside of or near the building or place where the victim resides, works, carries on business, studies or happens to be;

(b)          repeatedly making telephone calls or inducing another person to make telephone calls to the victim, whether or not conversation ensues;

(c)           repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the victim;

Because the DV Act only applies to people who are or were involved in a domestic relationship, it did not provide a solution for people who needed to apply for a protection order against someone with whom they were not in a domestic relationship – for instance a work colleague of the victim, or the new spouse of the victim’s former spouse.

A new act was therefore created, called the Protection from Harassment Act, No. 17 of 2011. This Act can be used by any person who alleges that he or she is being subjected to harassment. This act also allows for situations where the victim does not know who is harassing them, for example where the victim receives continuous threatening phone calls from an unfamiliar number.

When applying for an order in terms of the DV Act or the Protection from Harassment Act, the victim opens a case at the magistrates’ court in the area where the victim or the abuser permanently or temporarily lives, carries on business or is employed, or where the cause of action (“the act of abuse”) took place. The victim can choose to first go to a police station where police will assist the victim to complete the necessary documentation, however the documents must then be taken to court for a magistrate to look at.

If the magistrate is convinced that there is a possibility of harm being caused to the victim if the protection order is not issued immediately, then the magistrate will issue a temporary protection order, without the abuser’s knowledge, and tell the victim to return at a later date so that the court can hear the abuser’s side of the story and decide whether or not to make a final protection order.

It is crucial to note that after the victim has applied to the court for a protection order, the abuser must be informed of the application for the protection order as well as any return dates given by the court. It is the victim’s responsibility to take the relevant documents to the police station or sheriff of the court in the area where the abuser lives or works so that the documents can be formally “served” on the abuser. If the abuser does not have knowledge of the interim or prospective order, then the order has absolutely no power to protect the victim.

Once the application has been served on the abuser, the victim must make sure to obtain a report (“return of service”) from the police officer or sheriff who served it, and that report must be given to the magistrate as proof that the abuser received knowledge of the application.

Should the abuser disobey any of the terms of the temporary or final protection order, he may, under certain circumstances, be arrested.

If the victim needs to remove any personal belongings from the abuser’s residence, those items must be specifically listed on the application for a protection order. If the victim needs to remove a child from the custody of an abuser, that must also be listed on the application, even in situations where the victim is the mother of the child. Police officers will then be ordered to accompany the victim to the abuser’s residence to remove only the items listed on the court order.

Victims are often afraid to apply for protection orders as they fear that it might anger the abuser and cause the abuser to act even more violently. Victims are also often financially dependent on the abuser and see no way of being able to survive on their own. It is very important that the victim act quickly and apply for an order as soon as possible as the court might not believe that it is a serious situation if the victim did not act immediately after the abuse occurred.

It is also of utter importance that the victim explain the entire story in their affidavit when applying for the order, because they will not be able to change or add to their story later on.

The problem however is that it depends on the victim to stand up for him or herself. It helps a great deal if the victim has family or friends who can support them, emotionally and financially. There are numerous organisations that also provide wonderful support to victims, such as TEARS and churches.

If you are thinking of applying for a protection order, start the process immediately. The longer you wait the more difficult it is going to be. And once you start the application DO NOT GIVE IN to the abuser’s threats or charm or promises that the abuser will change.

Should you have any queries or need assistance with a protection order, feel free to contact us.

You can download the application for a protection order in terms of the DV Act here.

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