A SIMPLIFIED GUIDE TO THEDOMESTIC VIOLENCE ACT

First published by the Women’s Legal Centre in 2014 Copyright Women’s LegalCentre

Written by Jody Fredericks and Cherith SangerEdited by Sanja Bornman

Layout and Design by Cassandra Pireu

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INTRODUCTION

THE PURPOSE OF THEDOMESTIC VIOLENCE ACT

An order of the court,where a magistrate liststhe various things thatan abuser may and maynot do, to stop theabuser from abusingyou.

WHAT IS THE DOMESTICVIOLENCE ACT?

This booklet explains how you can use the Domestic Violence Act toprotect yourself from domestic abuse.

The DVA makes it possible foryou to get a protection orderagainst an abuser.The protection order will prohibitthe abuser from committingmore acts of domestic violenceagainst you.If the abuser commits an act ofdomestic violence against youthat is prohibited in theprotection order, he can bearrested and taken to court fordisobeying the protection order.

The Domestic Violence Act 116 of1998 (“the DVA”) is the law thatdeals with domestic violence inSouth Africa. This law exists to givepeople who are experiencingdomestic violence the bestpossible protection that the lawcan, and it commits thegovernment to stopping domesticviolence.

You can use the DVA to protectyourself if:

The abuse is comingfrom a person withwhom you are in a“domestic relationship”,andYou have experiencedone or more of thetypes of abuse that theDVA talks about.

Definition: PROTECTION ORDER

DOMESTIC RELATIONSHIPS

The person that is abusing you can be a man or a woman.

Important to note:

You currently live, or lived in the past, under the same roof with thatperson in an intimate relationship (like boyfriend or girlfriend), in acivil marriage, or a customary marriage.

The DVA says that you are in domestic relationship withsomeone if:

You currently live under the same roof with that person, or you did sorecently.

You do not live with the person, but you are married to or are in anintimate relationship with the person.

The person is a family member of yours (like your father, cousin, sonor aunt) or a family members of your current husband or partner, orex-husband or partner.

You and that person share responsibilities for a child. You do notneed to be the natural, adoptive parents or legal guardians of thechild, but could be.

The person believes or thinks that they are in an intimate relationshipwith you.

Women can abuse other women, and men can abuse other men,and women can also abuse men.

Child abuse is very serious, and must be reported to the police!

DOMESTIC ABUSE

Definition: DIGNITY

You are experiencing domestic violence if a person withwhom you are in a domestic relationship does one or moreof these things to you:

PHYSICAL ABUSE: When the person harms you physically, likebeating, slapping, punching, choking, kicking, stabbing, scratching,burning or shooting you.

Every person has the right to have her human dignity respected.Dignity is the feeling that you are a human being that has emotionswith self-respect or self-esteem.

SEXUAL ABUSE: When the person harms you sexually, like rapingor sexually assaulting you.

EMOTIONAL ABUSE: When the person harms you emotionally, likesaying things on purpose to hurt your feelings, shouting at you andcalling you bad names. He could be doing or saying things thatmake you feel bad about yourself, or scared, like threatening to takeyour child away from you if you divorce him, or threatening to hurtyou physically.

PSYCHOLOGICAL ABUSE: When the person harms youpsychologically, like saying or doing things on purpose to affectyour mental or psychological state of mind. He could beundermining you, or making you feel like you are a worthless andbad person without dignity.

VERBAL ABUSE: When the person harms you verbally, likeswearing at you, calling you bad words and names, and shouting atyou a lot.

DOMESTIC ABUSE

ECONOMIC ABUSE: When the person harms you economically orfinancially, like using money to try to control you or your behaviour.For example, she steals your money or belongings, refuses to buyfood for the children, to pay the children’s school fees or refuses togive you money for groceries unless you stop seeing your friends.

INTIMIDATION: When the person threatens to hurt or harm you,your children, friends or family if you do not do what she wants.Also, if she bullies you, scares you, or puts you under pressure todo or not do something. Psychological, emotional and verbal abusecan also be intimidation.

STALKING: When the person follows you around, or watches youall the time, and you do not want him to do so.

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HARASSMENT: When the person watches you or follows you all thetime, or sends you unwanted letters, messages on your phone oremails. Also if the person calls you all the time even when you’veasked them to stop.

DAMAGE TO PROPERTY: When the person damages or destroysyour belongings on purpose. For example, she breaks, destroys orspoils your personal things, kitchen things or furniture, or breakingthe doors and windows of the place where you stay.

When the person comes into the place where you live, which youdo not share with that person, without your invitation or agreement.

Any other behavior by the person that is abusive or harmful, andhas a bad effect on your safety, health or wellbeing.

You are experiencing domestic violence if a person withwhom you are in a domestic relationship does one or moreof these things to you:

PROTECTION ORDERWHO CAN APPLY FOR APROTECTION ORDER?

Important to note:

If you are applying for adomestic violenceprotection order on behalfof someone else, you musthave the person’s writtenpermission, unless theperson is younger than 18years, is mentally disabled,unconscious, or the courtis satisfied that the personcannot give theirpermission for somereason.Children below the age of18 can also apply for aprotection order.

You can apply for a protection orderin terms of the DVA if you areabused by somebody with whomyou are in a domestic relationship.You can also apply for a protectionorder on behalf of someone elsewho is a victim of domesticviolence.Any person who is concerned thatyou are being abused, including asocial worker, teacher, a healthworker or police service member.

WHERE CAN YOU APPLY FOR APROTECTION ORDER?

You can apply for a protection order atthe domestic violence section of yournearest magistrate’s court, or themagistrate’s court that is closest towhere the person who is abusing youlives or works.When you arrive, ask to be shownwhere the domestic violence clerk’soffice is, and tell the clerk you want toapply for a protection order.

WHEN CAN YOU APPLY FOR APROTECTION ORDER?

Where is the protectionorder valid?

When you get a protectionorder it is valid in the wholeof South Africa, no matterwhich court gives it to you.

During ordinary court hours, whichusually are from 09:00 – 15:30.Outside of ordinary court hours, oron weekends and public holidays.

You can apply for a protection order atthe court:

You can apply outside ofcourt hours if you can show:

1. That your case is veryurgent or,

2. That you will sufferunnecessarily if yourapplication is not dealtwith immediately.

PROTECTION ORDERA step-by-step guide to getting a protection orderStep 1: The application formThe domestic violence clerk at the magistrate’s court will ask you to fill in anapplication form. In this form there will be space for:

Your full details, like your name, IDnumber, address, phone number andplace of work.

The details of the person that isabusing you – try to give as manydetails as possible, because this willhelp the court and the police.

All the reasons why your applicationmay be urgent, and why you will sufferif you do not get a protection orderurgently.

Asking the court for the kind ofprotection that you want.

An explanation of what kind of abusehappened to you.

It is important that youhave the address ofwhere the person whoabused you lives orworks.

Documents to bring with ifapplicable:

Photographs Doctor's letter

Sworn affidavits by witnesses.

The clerk will ask you to swear orpromise that all the information youhave put in the form is correct andtrue.

Important to note:Pay close attention to theform, and make sure youanswer all the questions.If there is anything in theform that you do notunderstand, you must askthe clerk. The clerk mustexplain your rights and theDVA process in a way thatyou understand.

Important to note:Lying on purpose in anapplication form is aserious offence, and youcan go to jail for it, or bemade to pay a big fine.

Important to note:

PROTECTION ORDERA step-by-step guide to getting a protection orderStep 2: An interim protection order

When your application form is completedthe domestic violence clerk will take it to themagistrate while you wait. The magistratewill look at the facts of your case, and willconsider all your reasons for why yourapplication is urgent, and how you will sufferif you do not get a protection order urgently.

Important to note:The magistrate may askfor more information inthe form of affidavits, ormay ask to speak toyou or witnesses inorder to decidewhether or not to giveyou an interimprotection order.

The interim protectionorder can only be usedagainst the abuserlegally after it has beenserved on him.

Important to note:

The magistrate will then make a decisionabout giving you temporary protection “inthe meantime”, until the day that you and theperson who abused you can both come tocourt to talk about your application.

This temporary “in the meantime” protectionis called an “interim protection order”. IT ISNOT A FINAL PROTECTION ORDER.

Every interim protection order has a date onit when you must come back to the courtand appear in front of the magistrate. This iscalled a “return date”. You must make verysure you do not miss that date. If you missthe return date, the interim protection order“lapses” and becomes useless, and you arenot protected any more.

Definition: AFFIDAVIT

A sworn statement ordeclaration.

Important to note:You can always open acriminal case againstthe abuser for theabuse.

PROTECTION ORDERA step-by-step guide to getting a protection order

The person who is abusingyou must have at least 10days’ notice that they have tocome to court on the returndate. This notice period givesthe person time to preparefor the hearing.

If the magistrate decides to give youan interim protection order, thefollowing papers must be served onthe person who is abusing you by thesheriff of the court, or a member ofthe police:

What happens if the magistrate decidesto issue the interim protection order?

What if the magistrate decides NOT toissue the interim protection order?If the magistrate decides not to issuethe interim protection order, thefollowing papers must be served bythe sheriff of the court or a member ofthe police:

copy of your applicationdocuments.

copies or recordings of anydocuments or information thatthe magistrate used to make hisor her decision.

a copy of the interim protectionorder.

a notice calling on the abuser tocome to court on the returndate.

copy of your applicationdocuments.

copy of witness affidavits.

a notice calling on the abuser tocome to court on the returndate.

Important to note:

You will have to take all the documents that have to be served tothe office of the sheriff or the police yourself. You might be askedto pay a small service fee to the sheriff. If you cannot afford thesheriff’s service fee, you should inform the clerk of the court. Thepolice may serve the documents free of charge, or the court couldarrange for payment.

Definition: SERVED

Delivered by hand.

Step 3: Service of documents, and notice to the abuser

Important to note:

PROTECTION ORDERA step-by-step guide to getting a protection orderStep 4: The return date

On the return date, you will have a chanceto tell the magistrate your whole story, andto give all the reasons why you should begiven a FINAL protection order. On that dayyou must bring all your evidence with you,like photos and other papers showing theabuse, and witnesses.

The person who abused you will also havea chance to tell their side of the story, andto give the magistrate any reasons why youshould not be given a final protection order.The court could allow the person to ask youquestions, and to challenge your evidence.

The magistrate will then consider all thedocuments and witness statements, andmay ask you and the person who abusedyou questions. These will help themagistrate to decide whether you shouldhave a final protection order.

This day in court is like a small trial and canbe scary, especially if you’ve never been in acourt before. But you must not allow this fearto stop you from getting your protectionorder. Tell the magistrate all the facts, anduse your rights.

What happens if the abuser does not come to court on the return date?

The magistrate may then:

Important to note:This process happensin civil court, notcriminal court.

1. Give you a final protection order, on condition the magistrate issatisfied that all the documents were served on the abuser.

2. Postpone the case, and send a new notice to the person whoabused you to say he must come to court on another date. Youmust also be in court on that date!

Both you and theperson who abusedyou are allowed tobring lawyers to helpyou argue your case.

Important to note:

Important to note:At court you can askthat the abuser not beallowed to questionyou directly, unlessthey have a legalrepresentative.

PROTECTION ORDERWhat can the court say in the interim or final protectionorder?

The court can order that the person who is abusing you must not:

Commit an act of domesticviolence against you.

Arrange for other people tocommit an act of domesticviolence against you.

Enter the home you share with theperson who abused you, or a certainpart of the home like your room.

Enter your home, if you and theabuser do not share a home.

Enter your workplace.

What else can the court say in the interim or finalprotection order?

The court can make any other order that it believes is reasonably necessary toprotect your health, safety and wellbeing including an order:

Stopping you from sharing a home with the abuser, or going into theabuser’s home.

Asking the police to take away any dangerous weapon, like a gun, from theabuser.

For a police officer to go with you to the abuser’s place, so that you cancollect anything there that is your personal property.

Depending on your financial situation, asking the abuser to pay rental orthe bond payments in respect of a home that you share.

Depending on your financial situation, asking the abuser to pay youemergency maintenance, or the expenses that you had to pay because ofthe domestic violence, like medical, hospital, dental, loss of income ortemporary rent costs.

Stopping the abuser from seeing your children, or saying that the abusermay only see the children under certain conditions – the court will dowhatever is in the best interest of the children.

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CONTRAVENTION OF THEPROTECTION ORDER

How can the court punish the abuser for violating theprotection order?

If the abuser does anything that the protection order stops him from doing, thenthe abuser is “contravening” the terms of the protection order.

Contravening the terms of a protection order is a criminaloffence. The abuser will be required to appear in the criminalcourt before a magistrate, and might be sent to jail up to 5years, or ordered to pay a fine, or both.

The contravention of the protection order was serious.

If this happens, you must go immediately to the police station, or call thepolice, and report the contravention to them.

The police will ask you to make an affidavit explaining how and when theabuser contravened the protection order.

The police will arrest the abuser if they believe that:

The abuser is going to abuse you more, and cause you serious harm if heis not arrested.

Not much time has passed between the contravention and when youreport the contravention.

If the police do not arrest the abuser, they must give him a notice toappear in court for contravening the terms of the protection order.

1.

2.

3.

THE WARRANT OF ARREST

• lost.

Warrants of arrest “terminate”, and cannot be used whenthey are:

Every protection order comes with a “suspended” warrant of arrest. If the abuserdisobeys the terms of the protection order, the police will use the warrant toarrest the abuser if they believe:

The contravention of the protection order was serious.

• destroyed.

• once it is used to have the abuser arrested when hecontravenes the terms of the protection order.

The abuser is going to abuse you more, and cause you serious harmif he is not arrested.

Not much time has passed between the contravention and youreporting the contravention.

If the police use the warrant of arrest that the court gave you withyour protection order, that warrant is used up, and cannot be usedagain.

It is your responsibility to go back to court for another warrant, if yourfirst warrant is used up. You will have to make an affidavit, statingthat the first warrant has “terminated” and that you need anotherwarrant to protect yourself from the abuser. You will have to do thisevery time you need a new warrant.

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2.

3.

DUTIES OF THE POLICEThe police have a big role to play when it comes to domestic violence.The DVA says they have certain duties, and there are other documentslike the Service Charter for Victims that tell the police how to treatvictims of domestic violence.

To respect you, and treat you with kindness and professionalism.

When it comes to domestic violence, this is what you can expect the police to dofor you:

To give you their name and badge numbers if you ask for it.

To take your statement when you report domestic violence at the policestation.

To come to the place where the abuse happened if you call them.

To help you get medical treatment, and to give you the details of placeswhere you can get counselling and shelter.

To tell you about your rights in terms of the DVA in a way that youunderstand.

To tell you about your right to lay a criminal charge against the abuser,whether you are going to use the DVA or not – like a charge or rape,sexual assault, assault with intent to do grievous bodily harm, orintimidation.

To take away any firearm or dangerous weapon that the abuser mighthave with him, that is a threat to you.

To arrest the abuser when the abuse is serious, and if you are going tobe physically harmed if the abuser is not arrested.

To arrest the abuser or to give the abuser a notice to appear in court ifthe abuser has contravened the terms of a protection order.

To serve, on the abuser, the interim protection order and final protectionorder and/or notice calling on the abuser to attend at court.

To record the domestic violence incident in the domestic violenceregister in the police station, and to keep a copy of your protection orderon record.

WHAT TO DO IF THE POLICETREAT YOU BADLY OR GIVEBAD SERVICE

You can make a complaint to the Station Commander of thepolice station where you got bad service.

The Station Commissioner must then take disciplinary stepsagainst the officer that gave you bad service.

It helps to give the station commander the names andbadge numbers of officers that gave you bad service.

You can lodge a complaint with the Independent PoliceInvestigative Directorate, which has the power to investigatemisconduct claims against police officers.

STOPPING OR CHANGING APROTECTION ORDER

A protection order only stops when you go to court and“withdraw” or cancel it, or when the court sets it aside.

A protection order can be used on several occasions for severalyears without being terminated.

You can change the terms of your protection order, like maybeyou moved to a new house, or your place of work has changed,by making an application to the domestic violence clerk of themagistrate’s court.

The abuser may also apply to court to ask for your protectionorder to be set aside, but the court will only listen to hisapplication if the court is satisfied that you have been notified tocome to court.

The abuser cannot interfere with your protection order withoutnotice to you.

USEFUL CONTACTS

Child Line

Lifeline

Flying Squad SAPS

Rape Crisis

SA Depression & Anxiety Group

Alcoholics Anonymous SA

Narcotics Anonymous SA

Family and Marriage Associationof SA

Women’s Legal Centre

Independent Police InvestigativeDirectorate

Johannesburg

Cape Town

0800 150 150

0800 055 555

082 231 0805

1 0111

021 447 9762

011 262 6396

011 436 0116

021 592 5047

011 485 5248

0881 30 03 27

011 975 7106/7

021 424 5660

012 399 0000

Stop Gender Violence Helpline

Johannesburg

Cape Town