Domestic violence and your rights

…you are not alone! No doubt you will experience all manner of emotions in dealing with the abuse, whether it is physical, verbal or even emotional but it is important to remember that there are mechanisms in our law to protect you and your children.

Your rights as a victim of domestic abuse

The Domestic Violence Act (1998) protects women against a broad range of behaviours that constitute domestic violence; including physical, sexual, verbal, emotional and psychological abuse, stalking, intimidation, harassment, malicious damage to property, as well as other forms of controlling behaviour which may cause harm to the safety, health or well being of the victim.

An important protection afforded by the Act is that the definition of “domestic relationship” has been extended to almost any form of an intimate or personal relationship.

How to obtain a protection order against the abuser

Domestic Violence Courts are housed in the Magistrates Court within your Magisterial district.

If you are a victim of domestic violence, you are able to attend at the Magistrates Court and complete the relevant form, an Application for Protection Order (Form 2: J480).

Once completed, the Clerk of the Domestic Violence Court should issue the documents and open a case file. The Magistrate should then consider whether, you have made out a case of domestic violence and issue an Interim protection Order providing you with protection from the specific abuse to which you have been exposed.

A warrant of arrest could be authorised but suspended by the Magistrate which warrant may be used if the Respondent (person against whom you seek the Protection Order) violates the terms of the Order.

You are obliged to return to court on the return date, which date is given to you by the Clerk of the Court.

Making the protection order final

The Respondent is served with a copy of the Application papers and Interim Protection Order. Should the Respondent wish to oppose the granting of a Final Protection Order, they must place an affidavit before court advising why the Order should not be made final, to which you may reply by way of affidavit.

If the Application remains opposed, and in the event that there are disputes of fact on the affidavits, it will proceed to trial. The Magistrate will ultimately make a decision as to whether the Final Order should be granted.

While the Interim Protection Order is in place, and once it is made final, should the Respondent breach the terms of the Order, you have a right to call the police who are obliged to intervene.

If the police believe that you may suffer imminent harm, they are obliged to take the Respondent into custody and you may lay charges against the Respondent for the abuse.

In the event that the Domestic Violence Application becomes complex or difficult, we recommend that you seek legal assistance from an attorney who specialize in matters of this nature.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za