DOMESTIC VIOLENCE: A SURVIVAL GUIDE
– Christof van der Merwe
Are you the victim of domestic violence? Do you feel threatened and unsafe in the comfort of your own home? Are you constantly concerned about the safety and well-being of your children? Take 5 minutes to read this useful article.
Domestic violence is a serious offence in South Africa, and despite numerous preventative measures that was implemented in terms of legislation, to prohibit this barbaric behaviour, some offenders still think they are above the law.
Let’s take a look at the applicable laws that will be of assistance in this regard:
The Constitution of South Africa clearly states that every person has the right to freedom and security of the person (section 12) and the right to equality (section 9).
The Domestic Violence Act 116 of 1998 (“the Act”) is applicable when a person is a victim or offender in a domestic violence matter. This Act also broadens the definition of domestic violence not only to include physical abuse but also emotional-, verbal-, psychological-, financial- and sexual abuse, intimidation, harassment, stalking, damage to property and trespassing.
The purpose of this Act is to provide you with protection in order to secure a better future for yourself and your children and to give you hope. Although the Act provides protection for any victim, male or female, the purpose of the Act is still to diminish violence against women and children.
How can the court assist me?
According to section 4(1) of the Act any person can apply for a Protection Order. According Section 4(4) of the Act, even minor children can apply for such protection, without the assistance of a parent, guardian, or any other person.
The court may consider any evidence as it deems fit, and such evidence shall form part of the record of the proceedings. If the court is satisfied that the offender is committing or has committed an act of domestic violence, and that hardship is suffered by the complainant as a result of such domestic violence, the court will grant the complainant a Protection Order.
Section 7 of the Act regulates the powers of the court. The court may prohibit the accused from:
- Committing any act of domestic violence;
- Enlisting the help of another person to commit any such act;
- Entering the residence, or a part thereof, shared by the victim and the accused, or the victim’s own residence;
- Entering the victims place of employment;
- Committing any other act as specified in the protection order for e.g. Swearing, threatening, intimidation etc.
In the event that the accused threatens the victim with his or her firearm, a dangerous weapon or expressed the intention to kill himself or any other person, whether or not by means of such firearm or dangerous weapon, and in instances where it is not in the best interest for the victim or any other person, the court may order that the accused’s firearms or dangerous weapons be seized and retained under police custody. In extreme cases the court can even make an order that the dangerous firearms be forfeited to the state.
From a practical point of view
From a practical point of view, the complainant / victim has two options. He / she can either lay a criminal complaint against the accused, alternatively apply on any day and at any time for a Protection Order at the Magistrate’s Court in which area he / she resides, carries on business or is employed, or where the accused resides, carries on business or is employed, or in the area where the act of domestic violence occurred.
An application form will be provided to the victim to complete and the accompanying affidavits and documents must then be submitted to the clerk the court. The court will consider the application and then issue a temporary Protection Order, which will only come into effect after it has been delivered to the accused. The temporary order is only valid for a certain period of time and after the period runs out, the court will consider issuing a permanent order. The victim and the accused will then be given a date to appear in court. It is of upmost importance to keep all evidence that might be of assistance in court. If you do not want to appear in front of a Magistrate, you have, in terms of section 14 of the Act, the right to a legal representative.
We can therefore gladly assist you by appearing on your behalf and to assist with the accumulation of evidence and submitting the relevant forms to the clerk of the court. You are also allowed to bring three friends or family members to the court for moral support.
Victims of domestic violence are often most vulnerable people in our society. The number of people who suffer from this is astonishingly high and the worst part is, it is often people we know. The sad part is this is usually our loved ones who commit these crimes against us. Taking the aforementioned into consideration, there is no reason for victims to keep quiet. Any act of domestic violence can harm our loved ones and leave a temporary or permanent emotional scar. Victims of domestic violence have no reason to feel oppressed. It is time to stand up and say #METOO.
If all of this makes you feel overwhelmed, give us a call and we will gladly assist you in taking the first step towards a better standard of living, not only for you, but also for your children.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.