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Writer's pictureArthur Morton

TEACHINGS ON DOMESTIC VIOLENCE

Updated: Jul 2, 2023


Definition of Domestic Violence


Domestic violence may be committed in a wide range of domestic relationships, also knowns as domestic abuse, spousal abuse, family violence, and dating abuse.

Domestic violence is controlling or abusive behavior which involves the abuse by one partner against another in a social or intimate relationship such as marriage, cohabitation, dating, or within the family which harms, or may cause imminent harm to, the safety, health, or well-being of the complainant. The conclusion domestic violence is a serious social evil.


Definition from the Domestic Violence Act 116 of 1998 in South Africa:


'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) life 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 a child or older person i.e. Sec4(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 men by a woman involved 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, or throwing objects that cause physical suffering or bodily harm., hitting, kicking, biting, pushing, restraining, slapping, or throwing objects that cause physical suffering or bodily harm., hitting, kicking, biting, pushing, restraining, slapping, or throwing objects that cause physical suffering or bodily harm., hitting, kicking, biting, pushing, restraining, slapping, or throwing objects that cause physical suffering or bodily harm.: assault,hitting, kicking, biting, pushing, restraining, slapping, or throwing objects that cause physical suffering or bodily harm.


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

This abuse can exist either during or after the 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 inappropriate sexual behavior that causes 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 exist either during or after the 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 and name-calling are examples among persons who are still living with their perpetrator's high amounts of stress, fear, and anxiety are commonly reported. This abuse can exist either during or after the 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 person’s salary and not giving it back. This abuse can exist either during or after the termination of a relationship.


'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 behavior towards a complainant,

where such conduct harms, or may cause imminent harm to, the safety, health or the well-being of the complainant.


WHAT ARE MY RIGHTS WHEN I AM BEING ABUSED? Any victim of domestic violence (the applicant) has the right to apply for a protection order at the nearest police station, the South African Police Service member will render such assistance to you as you may require in the circumstances including assisting or making arrangements to find a suitable shelter; and/or get medical treatment.


Request a Medical assessment form (J88) when undergoing medical treatment, the doctor must complete the form. The (J88) can be used twofold in the Domestic Violence application and in a criminal case of assault.

and


the victim of domestic violence (applicant) has the right lay a criminal charge against the person who committed the act of domestic violence (the respondent) if the conduct of the respondent constitutes a criminal offense that will be investigated by the police.


The application for a protection order Form 6 must be completed in front of a SA Police member signed by the victim and commissioned by the SAP member and then the victim can take it to the magistrate’s court.

or


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


â–ª you reside, carry on business, or are employed, permanently or temporarily;

â–ª the respondent resides, carries on business, or is employed; or

â–ª The act of domestic violence occurred.


The application for a protection order Form 6 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 ARE THE STEPS AND HOW LONG WILL IT TAKE TO OBTAIN THE ORDER?

STEP 1


The clerk of the court hand in the application for a protection order (Form 6) 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


â–ª committing any act of domestic violence;

â–ª getting the help of another to commit any act of domestic violence;

â–ª entering your workplace, home, or the shared residence or any part thereof;

â–ª preventing you or any child who normally lives in the shared residence from entering or remaining in the residence or any part thereof;

â–ª Committing any other activities 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 –


â–ª order that the respondent pay rent, mortgage, or other monetary relief (such as medical expenses and loss of income);

▪ refuse the respondent’s contact with your children;

â–ª order the seizure of any arm or dangerous weapon in the possession or under the control of the respondent.

â–ª order that a peace officer accompany you to assist you with the collection of your personal property.

â–ª impose any other condition it deems reasonably necessary


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


  • Granting the interim protection order (Form 12) and the clerk of the court is ordered to serve the respondent with the (Form 12) 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 13) application/supporting affidavit(s) calling on the respondent to appear Notice to show cause why a protection order should not be issued;


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 instructing the clerk of the court to issue a (Form 13) a Notice to Show cause is ordered to serve the respondent with (Form 13) 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 protection order (Form 12) 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 33) for the respondent.

STEP 2:


The clerk of the court will provide the applicant/victim with the original copy of the order and a blank return of service which have 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 33) and an affidavit explaining that the respondent has breached the order AFTER the (Form 12) was served on the respondent.


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

STEP 3:


On the return date where the applicant MUST appear in court.


Failure to appear means this order will be extended, and Notification of the next date of hearing (Form 32) will be sent to the applicant and the Respondent.

.

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 if the victim of domestic violence (applicant) might have made a false protection order.


Or


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


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


(a) conducts his own defense;

(b) Appoint his own legal representative;

(c) Apply for legal aid


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


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.


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

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

  • Any contravention of a prohibition, condition, obligation, or order contained in the protection order will result in the 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 becomes a final order,(Form 29) and is signed by the magistrate or where a Notice to Show Cause was issued now granted (Form 30).


WARNING: It is a criminal offense 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, because of the effect and consequences of the protection order. The condition is that the respondent must give written notice to the applicant and the court.



To find attorneys in your area:





The following forms are only obtainable from the Magistrates Court:




FORM DOWNLOAD FOR APPLICANTS AND RESPONDENTS: Click on the Hyperlink to download the form:


  • J88 - Report on a Medico-Legal Examination by a healthcare practitioner

  • Form 1: Notice to be handed and explained to the complainant by a police official in case of domestic violence

  • Form 2: Report and risk assessment by a functionary

  • Form 3: Affidavit by an adult to report knowledge, belief, or suspicion of acts of domestic violence

  • Form 4: List of accessible shelters and public health establishments

  • Form 5: Notice to be handed and explained to the complainant by a peace officer in case of domestic violence

  • Form 6: Application for a protection order

  • Form 7: Consent for another person to apply for a protection order on behalf of a victim

  • Form 8: Information notice to the complainant who is not represented by the legal practitioner

  • Form 9: Application for domestic violence safety monitoring notice

  • Form 11: Report by a member of the South African Police Service to the court

  • Form 18: Affidavit by electronic communications service provider furnishing information to court

  • Form 19: Application by electronic communications service provider for extension of the period within which information must be provided to the court or cancellation of direction

  • Form 21: Affidavit by electronic communications service provider furnishing additional evidence to court regarding extension of time

  • Form 24: Application by electronic communications service provider to set aside or amend court order

  • Form 26: Affidavit by electronic communications service provider furnishing additional evidence to the court regarding the application to set aside or amend court order

  • Form 34: Affidavit for purposes of second or further warrant of arrest

  • Form 35: Affidavit regarding contravention of a Protection order

  • Form 38: Application for variation or setting aside of protection order

  • Form 41: Request for authorization of alternative manner of service


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 below:


Childline: 080 005 5555

Child Welfare South Africa: 011 492 2884

Family Violence Child Abuse Sexual Offence: 012 393 2363

Women Abuse: 0800 150 150

AIDS Helpline: 0800 012 322 or 011 725 6710

South African Police Service emergency number: 10111

Crime Stop: 086 001 0111

Human Rights Commission: 011 484 8300

Street Law (National Office): 031 260 1291


Provincial Departments of Social Development:

Gauteng 011 355 7843/7823

KwaZulu Natal 033 264 2068

Northern Cape 053 874 9100

Western Cape 021 483 4153

North West 018 388 2021

Limpopo 015 293 6000/6331

Mpumalanga 013 766 3156/3120

Free State 051 409 0590

Eastern Cape 040 609 5303/4/5 or 608 5810



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