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
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 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.
Conclusion
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.
THE NOISY GUESTHOUSE NEXT DOOR
– Nadia Burger
It’s very common to have guesthouses in between residential houses in suburbs, but what can you do when the guesthouse next door becomes a disturbance of your peace?
In the matter of Du Toit N.O. and Others v Coenoe 90 CC and Others[1] owners of properties resided opposite or close to a guesthouse. The owners complained and alleged that large trucks were a frequent occurrence at the guesthouse and construction took place regularly. A party was allegedly hosted at the guesthouse with more than 50 people in attendance and there was drinking, swearing and urinating in the street. The police was called to intervene and they arrived at 03:00 after which the noise and music quieted down. However, after the police left, the noise started up again and the music was turned back on. The police had to come back at 07:00. The street was strewn with empty beer and liquor bottles. The owners then proceeded to meet and discuss the situation at hand. Further, numerous taxis and vehicles with Lesotho number plates allegedly frequented the guesthouse. On one occasion, a big bus allegedly stopped in front of the guesthouse dropping off about 15 guests only to pick up the guests the following morning at 05:00, causing noise and disturbance at such an early hour. The list of allegations and complaints went on.
The owners approached the court for relief. The owners ascertained that the guesthouse was zoned by the municipality for single residential purposes. In terms of the Town Planning Scheme stipulations, a dwelling house and dwelling unit are defined as “a self-contained interleading set of rooms used only for the living accommodation and housing of a single family together with such outbuildings as are ordinary used therewith”. The use of a property for purposes as a guesthouse would thus fall outside the above definition and would therefore be illegal.
The Guesthouse however alleged that they have applied for permission to operate the guesthouse and that they have been granted “special permission” from the Local Authority to operate the guesthouse pending final approval from the Local Authority. They apparently had a letter to this effect, but the letter could not be found to prove that they had the necessary permission.
The court said that even if it is accepted that the guesthouse had permission to operate pending the outcome of the application by the guesthouse, such informal authority cannot be the authority by the guesthouse as envisaged by the relevant ordinances and regulations in this regard. After the proper procedure had been followed, and in particular after proper notices have been given to the property owners in the vicinity of the guesthouse, and notices in the local Newspaper, only then after proper consideration, may consent be granted for the special use as a guesthouse. Up until that stage the guesthouse on the property is being run illegally.
The court subsequently interdicted the guesthouse from using the dwelling / guesthouse for any other purpose than “dwelling house / unit and / or in conflict with the single residential zoning”.
Should you ever find yourself in a situation similar to the above, start by approaching the Local Municipality and try to ascertain if the guesthouse has the necessary permission and zoning to operate as such or contact us to assist.
[1] (1584/2017) [2017] ZAFSHC 126
JUNE – NATIONAL ENVIRONMENT MONTH
– Tjaart de Beer
South Africa is not only culturally rich and diverse, but also has a unique and varied abundance of fauna and flora. The month of June is National Environment Month, with 5 June as World Environment Day.[1]
Currently, our country is confronted with an array of environmental challenges, from, in my opinion, the worst droughts the Western Cape Province has ever seen, to flash floods occurring after strange and heavy winter rain fall in the Gauteng and North West Provinces with incidents of drowning as a result. The two examples might be significant from a humanitarian point of view, but how does the law have an impact on any environmental issues?
In instances where floods devours houses, especially in informal settlements, it is clear that there is a disregard for the municipal by-laws and regulations in relation to flood line limitations set for this very reason, to prevent floods from destroying houses built within these determinations.
There is also the basic human right to clean water, which is translated into the free allocation of 6 kilolitres of water per household per month.[2] Put into perspective, 1 kilolitre is equal to 1000 litres. An estimated 80 litres of water is used to have a shower or, by flushing a toilet one uses up to 6 to 12 litres per flush. With the level 4 water restriction implemented in Cape Town, earlier in the year, a maximum of 100 litres per person per day recommendation was introduced.[3] So, the question beacons to be asked, how could we demand our “free” water if there is not enough to go around? In this instance, the limitation of rights[4] may be relevant, as provided for by the Constitution of the Republic of South Africa, 1996.
One area that has a big impact on the environment is the mining sector. “The Chamber of Mines and its members are committed to various multilateral agreements with Government with the ultimate goal to realise a more environmentally balanced future through the Sustainable Development Goals.”[5] Apart from the mining legislation playing a role in the regulation of the way in which mines deal with the delicate environment, there are internal movements to promote sustainability.
The aforementioned are both elements of the holistic environment we live in. There are the results of global warming on the one hand and the economical presence of mining companies on the other. As stated on the website of the Department of Environmental Affairs, South Africa is a “highly energy-intensive economy” which leads to extremely high levels of emissions of greenhouse gasses.[6]
Coal, a product of mining, is heavily relied upon as an energy source and therefore the supply and demand thereof is constantly at play, despite the impact that it may have on the environment. Transgressions are to be combatted with the National Environmental Management Act No. 107 of 1998, as amended, by having Environmental Impact Assessments (“EIA”) as a tool in determining the actual impact of any, in this case mining, activity will have of the environment which is still in its natural form. EIA’s are also required when permission for housing developments are to be applied for at a municipality.
Therefore, apart from the never-ending conversations we could have over the environment and how it is being destroyed by our actions, there is legislation in place to best protect and regulate our impact, but, as was the topic in the February 2018 issue of The Litigo, it remains our, the inhabitants’, responsibility to reduce, reuse and recycle in every possible way. Sometimes it takes a negative incident to generate a positive outcome, as was the case with the water issue in the Western Cape. Many innovative solutions emerged from fellow South Africans in an attempt to add to conservation and being more environmentally friendly and considerate. What is your solution to conserve and save the environment?
[1] http://www.chamberofmines.org.za/special-features/121-national-environment-month (Date visited: 18 May 2018).
[2] http://greenaudits.co.za/how-to-read-your-water-meter/ (Date visited: 18 May 2018).
[3] https://www.health24.com/Lifestyle/Environmental-health/see-how-much-water-do-you-use-per-day-20170613 (Dated visited: 18 May 2018).
[4] Section 36 of the Constitution.
[5] http://www.chamberofmines.org.za/special-features/121-national-environment-month (Date visited: 18 May 2018).
[6] http://soer.deat.gov.za/612.html (Date visited: 18 May 2018).
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.