Introduction

Domestic violence is perpetrated between men and women on a daily basis, however, an average of 7 South African women are murdered by a partner or immediate family member daily.

In an attempt to combat this the Legislature has provided two avenues in which protection against a perpetrator of (amongst other things) Domestic Violence can be sought, namely; the Domestic Violence Act and the Protection from Harassment Act. It is important to know that the nature of the victim’s relationship to the perpetrator will determine which Act a victim will need to rely on in order to obtain the relief offered by each of these Acts.

Obtaining an Interim Protection Order in terms of the Domestic Violence Act:

In order to obtain a Protection Order in terms of the Domestic Violence Act the act of “domestic violence” must have occurred, inter alia, between and/or by persons in a “domestic relationship”.

A “domestic relationship” is defined in the Domestic Violence Act as being between persons who are or were married to one another, including in terms of any law, custom or religion, persons who live or have lived together in the nature of marriage, the persons the parents of a child or have had parental responsibility for the child, are family members or share or recently have shared the same residence.

An “act of domestic violence” may be one or a combination of the following:

  1. Physical abuse;
  2. Sexual abuse;
  3. Emotional, verbal and psychological abuse;
  4. Economic abuse;
  5. Intimidation;
  6. Harassment;
  7. Stalking;
  8. Damage to property;
  9. Unlawful entrance to property; and
  10. Any other controlling or abusive behaviour, where the act harms or may cause imminent harm to another person’s safety, health or wellbeing.

Obtaining an interim protection order in terms of the Protection from Harassment Act:

In order to obtain a Protection Order in terms of the Protection from Harassment Act, the act of “harassment” must have occurred between and/or by persons not in a “domestic relationship”. This means that in terms of this Act, one may apply for a Protection Order even if one does not know the identity of the person harassing or causing harm to him or her.

“Harassment” is defined in the Protection from Harassment Act as:

“Directly or indirectly engaging in conduct which the perpetrator knows or ought to know –

 

  1. causes harms or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-

 

  1. following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or related person resides, works, carries on business, studies or happens to be;
  2. engaging in verbal, electronic or any other communication aimed at the complainant or a related person, be any means, whether or not a conversation ensues; or
  • sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or any other objects to the complainant or related person or leaving them where they will be found by, given to or brought to the attention of the complainant or any related person; or

 

  1. amounts to sexual harassment of the complainant or related person”.

 

in order to qualify for a Protection Order, the harassment must include an an element of harm, which can be mental, psychological, physical or economic.

It would appear from the above that obtaining a protection order in terms of the relevant Acts should be an easy process, especially when one appears and the police station or at the relevant court with physical wounds, or proof that one has or will suffer imminent harm as set out above, however, the issue comes in that the court, despite the Acts, exercises its discretion as regards the issuing of an interim protection order and where the court is not satisfied that, on a balance of probabilities, one has suffered or will suffer imminent harm a return date is provided and an interim protection from the person or persons causing harm is not granted.

Practicalities in Applying for a Protection Order:

Whilst the aforesaid Acts may make the process of applying for a Protection Order seem relatively simple, the Court has a wide discretion as regards whether or not it is inclined to grant either a final or interim Protection Order at all. In order to obtain at least an “interim order” one has to prove that, on a balance of probabilities, one has or will suffer imminent harm if the order is not granted.

As such, it is recommended that when applying for the relevant order, you must, at the outset, place all evidence of abuse or harassment before the court, as you will be bound by this evidence throughout the proceedings.

it is recommended that in your application, you must describe all incidents that have previously occurred and what you fear may occur in the imminent future. It is suggested that to the extent possible you provide photographic evidence of the physical attack; obtain a J88 form from your nearest doctor or hospital; provide screenshots of intimidation; and/or provide evidence of threats and/or economic abuse.

The more detailed your initial affidavit and the more proof that you are able to provide that you are in fact in need of protection, the more likely the court will be to grant an interim order in terms of the relevant Act.

If you are experiencing Gender-Based Violence or Domestic Violence, and in addition to applying for a Protection or Harassment Order at your local Magistrates Court, we recommend you dial *134*7355# for further guidance and advice. This helpline is accessible 24 hours a day and on 7 days a week in all 9 provinces.

Kimberley Tee

Associate

HJW Attorneys

 

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