The Domestic Violence Act

What is domestic violence?

According to the Domestic Violence Act (the DVA), domestic violence is:

• Physical and sexual abuse;
• Emotional, verbal and psychological abuse
• Intimidation, harassment and stalking;
• Damage to property;
• Entry into the survivor’s residence without consent (if the perpetrator and survivor do not live together);
• Economic abuse – includes unreasonably withholding money or resources from a person to which she or he is legally entitled, including:
  -household necessities
  -bond repayments 
  -rent for a shared residence; and
• Any other controlling or abusive behaviour, which harms, or may cause imminent harm to, the safety, health or well-being of the survivor.

Does the DVA apply to me?

The DVA applies to anyone who is in a domestic relationship with an abuser. This includes:

• Marital partners, ex-marital partners, live-in partners, ex-live-in partners, same-sex partners;
• Parents of a child;
• All kinds of family members (including adopted ones);
• Someone with whom the survivor had an actual or perceived romantic, intimate or sexual relationship, no matter how long or how brief; and
• Persons who share or recently shared a household

How can the DVA protect a survivor of domestic violence?

• The DVA allows a survivor to apply for a protection order against the perpetrator of domestic violence.
• The protection order is issued by a magistrate who also issues a warrant of arrest and gives it to the survivor to keep.
• Should the perpetrator breach any of the terms of the protection order, the survivor can hand the warrant of arrest to the police, together with a form wherein the survivor describes how the abuser has breached the order. The police can then immediately arrest the abuser.

How do I apply for a protection order?

• You can apply for a protection order yourself, or someone else with an interest in your wellbeing (including a police officer, social worker, teacher or health worker) can apply on your behalf. Someone else can only do so with your consent, unless you are unable to give your consent.
•  You can collect a form containing an affidavit (a sworn statement) from any police station or from the clerk of any of the magistrate’s courts in your area.
• On the form, you will describe details of the abuser and the domestic violence perpetrated by that person.
• You will then take the affidavit to the clerk of the magistrate’s court where you live, work, or has a business or where the abuser lives, works or has a business; or where the domestic violence occurred. The clerk will take your application to the magistrate.
• Your application can be brought during court hours or after hours if you will suffer undue hardship if the matter is not dealt with immediately.
• No one will contact the abuser at this stage, or ask for that person’s opinion. However, the protection order is not final, and provides for a day on which the abuser can come to court and tell the magistrate why the protection order should not be made final. In order that the abuser will know when the day is, a copy of the protection order will be served on him by the sheriff/police/clerk of the court.

What can the protection order include?

• The abuser may not commit an act of domestic violence.
• The abuser may not come near you or your children, or threaten you in any way.
• The abuser may not get the help of another person to commit any act of domestic violence.
• The police must confiscate a dangerous weapon in the abuser’s possession.
• The abuser must pay the rent or mortgage payments.
• The abuser must pay emergency monetary relief for losses suffered because of the domestic violence, including loss of earnings, medical costs, moving or accommodation expenses and household necessities.

What can happen to the abuser if he breaches the order?

• The abuser can be fined or put in jail for up to five years.

How much will it cost me?

• Applying for a protection order is free.
• You may have to pay the sheriff to deliver the protection order to the abuser.

What are the rights and duties of the police?

• A police officer who arrives at the scene of domestic violence must inform the survivor of her or his rights to apply for a protection order.
• A peace officer (police officers, magistrates and other officials) can arrest an abuser without a warrant at the scene of domestic violence.

Other things to think about

• If things change, you can apply to have the protection order withdrawn or varied, but only if you make this application freely and voluntarily.
• If you lie in an affidavit about violations of the protection order, you can be fined or put in jail for up to five years.

For further information, or to speak to someone about being abused, call the Saartjie Baartman Centre for Women and Children, 021 633 5287.

Alternatively, refer to Health24's domestic violence support group directory.

Sources:
Sonnenberg Hoffmann & Galombik Inc., Attorneys, Notaries and Conveyancers. Updated by the Saartjie Baartman Legal Advice and Training Project, 2010

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