The Domestic Violence Act (No 116 of 1998) the ‘old’ Domestic Violence Act recognised that domestic violence is a serious crime against society and aimed to give greater protection to people in domestic relationships who have been abused. The ‘new’ Domestic Violence Act (No 14 of 2021) has amended the previous Act by introducing new definitions like coercive and controlling behaviour and broadening existing definitions to include, for example, spiritual abuse and elder abuse. Another change is that victims of domestic violence can now apply for a protection order electronically without having to go to court. So an application for a protection order can either be lodged with the clerk of the court or can be submitted by sending the application to an email address of the Magistrate’s Court that will hear the case. This will help people who need urgent protection and can’t get to a court.

The ‘new’ Act also states that exposing a child to domestic violence constitutes an act of domestic violence. This provision protects children when perpetrators intentionally make them witness or experience acts of domestic violence.

The Domestic Violence Act includes people who are married according to any law, custom or religion, living together whether they are of the same or of the opposite sex, dating or ex-partners. Also included are parents and children, people sharing homes, or caregivers to children or older people. The Act says:

• A person can be charged and convicted of marital rape whether the parties are married according to civil, customary or religious law.
• When police arrive at a scene of domestic violence, they must inform victims that they have a right to ask for police assistance to protect themselves and their children. Police are allowed to seize firearms and other weapons.
• Victims can ask the police to help them find a place of safety and for help to move them there.
• Police have to explain to victims how to get a Protection Order. The order is issued by a court and will specify conditions that the abuser must stick to. The court will also issue a warrant for the arrest of the abuser if they break any of the conditions.
• The Act gives police the right to arrest an abuser at the scene of an incident of domestic violence without a warrant of arrest if the police reasonably suspect that the abuser has committed an offence involving physical violence.
• A person who is subject to domestic violence can also ask for emergency money relief.

DOMESTIC VIOLENCE

The Act says domestic violence includes:

• Physical abuse
• Sexual abuse
• Emotional, verbal and psychological abuse
• Economic abuse
• Intimidation
• Harassment
• Spiritual abuse
• Damage to property
• Elder abuse
• Coercive behaviour
• Controlling behaviour
• Exposing or subjecting children to any domestic violence behaviours
• Entering a person’s home without consent where people do not share the same home, workplace or place of study, without consent, where they don’t share the same workplace or study place
• Any other controlling or abusive behaviour that harms or may cause harm to a person

Legal remedies in domestic violence cases include:

• Laying a criminal charge, for example, assault, against the abuser (See Laying a criminal charge against another person)
• Getting a Protection Order against the abuser under the Domestic Violence Act, including if necessary getting an order to have the abuser’s gun removed, if the abuser has used a gun to threaten the victim, and/or an order that the abuser be evicted from the common home. (See Problem 2: Using the law against domestic violence; See Problem 3: Getting a Protection Order)
• Making a civil claim against the abuser to claim compensation money for pain and suffering and any medical costs

PHYSICAL ABUSE

Physical abuse is defined as any act or threatened act of physical violence towards someone or to a child. In the case of physical abuse of children, it includes any form of deliberate harm or ill-treatment of a child and includes assault, sexual abuse, bullying by another child, a labour practice that exploits a child, or exposing or subjecting them to any behaviour that could have the child psychologically or emotionally.

SEXUAL ABUSE

The Domestic Violence Act says sexual abuse is ‘any conduct that abuses, humiliates, degrades, or otherwise violates the sexual integrity of the complainant’. Sexual abuse can, among other things, be the following:

• Forcing sex on a person (rape)
• Sexually assaulting them in other ways
• Sodomy
• Touching someone in a way that makes them uncomfortable
• Forcing oral sex on a person
• Incest (where a child’s parent/brother/sister sexually abuses them)

Legal remedies in sexual abuse cases include:

• Laying a criminal charge against the abuser, for example for rape or sexual assault (See Steps in laying a criminal charge against another person)
• Getting a Protection Order against the abuser under the Domestic Violence Act (See Problem 3: Getting a Protection Order)
• Making a civil claim to claim compensation for pain and suffering (See Civil claims)

ECONOMIC ABUSE

Economic abuse is when the abuser doesn’t pay a woman maintenance out of spite towards her, withholds money to control her or takes her salary away from her.

Legal remedies in economic abuse cases include:

• Getting a protection order under the Domestic Violence Act for emergency monetary relief, which can include:
  • Compensation for loss of earnings
  • Medical and dental expenses
  • New accommodation expenses
  • Household or family necessities (See Problem 3: Getting a Protection Order)
• Claiming for maintenance under the Maintenance Act. (See Problem 4: Getting maintenance through the Maintenance Court). The Maintenance Court process can take some time so if money is needed urgently, it is best to apply for a Protection Order for emergency monetary relief. You must still claim maintenance in the Maintenance Court as well because the Protection Order will only give emergency monetary relief for a temporary time because maintenance is supposed to be dealt with by the Maintenance Court. When the Maintenance Court makes an order, this will replace the part of the Protection Order that gives emergency monetary relief.

EMOTIONAL, VERBAL AND PSYCHOLOGICAL ABUSE

The Domestic Violence Act says emotional, verbal and psychological abuse is ‘a pattern of degrading or humiliating conduct towards a complainant’ including:

• Repeated insults, ridicule or name-calling
• Repeated threats to cause emotional pain
• Repeated exhibition of obsessive possessiveness or jealousy, which is a serious invasion of a person’s privacy, liberty, integrity or security
• Creating fear

Legal remedies in emotional and psychological abuse cases include:

• Laying a criminal charge against the abuser, for example for kidnapping, abduction, crimen injuria (See Laying a criminal charge against another person)
• Making a civil claim for compensation for pain and suffering (See Civil claims)

ELDER ABUSE

Elder abuse refers to the abuse of an older person which is a punishable offence. The new Domestic Violence Act (2021) has extended the protection from domestic violence to older people as well.

SPIRITUAL ABUSE

Spiritual abuse is now a category of abuse in terms of the Domestic Violence Act (2021). It is defined as:

• Ridiculing or insulting the complainant’s religious or spiritual beliefs
• Preventing the complainant from practising their religious or spiritual beliefs
• Utilising the complainant’s religious or spiritual beliefs to control, manipulate or shame them including using religious texts or beliefs as a reason to justify abusive behaviour

ENTERING A VICTIM’S WORKPLACE OR RESIDENCE WITHOUT CONSENT

It is an act of abuse (which can be included in a Protection Order application) if a person enters a victim’s workplace or home without their consent.

HARASSMENT

Harassment means behaving in a way that makes a person afraid they will be harmed. It includes stalking (where someone follows you around, or hangs around your home), repeatedly making unwelcome telephone calls, or sending unwelcome emails, packages, texts, photos or videos.

SEXUAL HARASSMENT

Sexual harassment means sexual attention from a person in a domestic relationship with the complainant who knows or ought to know that the attention is unwelcome. it includes the promise of a reward for complying with the request linked to sexual behaviour; or a threat of harm for refusing to comply with a request linked to sexual behaviour.

COERCIVE AND CONTROLLING BEHAVIOUR

Coercive behaviour is abusive conduct using intimidation or pressure to make a person behave in a certain way against their will and where they believe they will be harmed. Controlling behavior is forcing a person to be dependent on another person by:

• Isolating them from sources of support
• Exploiting their resources for their own gain
• Depriving them of the support needed to resist or escape
• Regulating their behaviour.

REPORTING DOMESTIC ABUSE

It is compulsory for an adult who knows, believes or suspects that an act of domestic violence has been committed against a child, a person with a disability or an older person, to report this to a social worker or a member of SAPS. If they fail to do this they will be guilty of a criminal offence.

The report must be made on FORM 3 available from the Department of Justice website: https://www.justice.gov.za/forms/form_dva.htm.

The report must give reasons why the person reporting the matter believes domestic violence is taking place.

It is also compulsory for a functionary, who could be a medical practitioner, social worker, official employed at public health establishments, health care personnel, educator or caregiver, who has a belief or suspicion on reasonable grounds, that a child, or a person with a disability or an older person, may be a victim of domestic violence, to immediately report this to a social worker or a member of the SAPS. They must complete FORM 2: Report and Risk Assessment available on the Department of Justice website: https://www.justice.gov.za/forms/form_dva.htm

DUTY OF THE POLICE TO ASSIST AND INFORM PEOPLE OF RIGHTS IN DOMESTIC VIOLENCE CASES

When a person reports a case of domestic violence to the police, the police must:

• Assist the person who is laying the complaint, including getting them medical treatment and finding shelter.
• Hand FORM 1 (available from the Department of Justice website: https://www.justice.gov.za/forms/form_dva.htm) to the complainant which contains a list of their rights and the responsibilities of the police in domestic violence cases.
• Explain to the complainant or to the person acting on their behalf, that the SAPS will assist; that they have a right to make a criminal complaint and to apply for a Protection Order even if no criminal complaint has been made, and the right to apply for a Domestic Violence Safety Monitoring Notice.
• Inform the complainant of the option of applying for a Protection Order and for a Domestic Violence Safety Monitoring Notice online, and how the online portal can be accessed.
• Read and explain the notice to the complainant if they can’t read it, and advise them to go to the clerk of the court for more information and help.

Domestic Violence Safety Monitoring Notice

A person (the victim) who shares any type of residence, like a house or flat, with someone (the abuser) who has committed an act of domestic violence against them, can apply to the court to issue a Domestic Violence Safety Monitoring Notice. This can be done at the same time as an application for a Protection Order or even where a Protection Order is in force. The purpose of the Safety Monitoring Notice is to provide a victim with added protection if they live with someone who is a threat to their safety. The Safety Monitoring Notice orders the station commander at the local police station to appoint a police officer to:

• Contact the complainant at regular intervals electronically to find out if they are safe
• Visit the joint residence where the victim and the abuser live at regular intervals to check on the complainant

The application can be made by going to the court or electronically by submitting the application to an email address at the Magistrate’s Court where the case will be heard. The email address list is available on the Department of Justice website: https://www.justice.gov.za/forms/dva/20230417-DV-Court-Emails.pdf]. The application must be done on FORM 9 available from the Department of Justice website: https://www.justice.gov.za/forms/form_dva.htm and must include any supporting affidavits of people who know about the domestic violence and who will support the application.

When the clerk of the court has issued the Safety Monitoring Notice, it will be sent to the complainant and to the local SAPS station commander who must assign a police officer to serve the notice on the perpetrator within 24 hours. The police officer must contact the complainant immediately after serving the Notice on the perpetrator. If the Notice couldn’t be served, they must ask the complainant for details on where to find the perpetrator. The police officer must submit a return of service or non-service (if they couldn’t find the complainant) to the clerk of the court by hand or electronically within 12 hours of serving the Notice on the perpetrator.

PROTECTION ORDER

Under the Domestic Violence Act a person can get a Protection Order to stop another person abusing them, or for the abuser to leave the home. The advantages of this process under the Act are: You do not need an attorney to help you to apply for this kind of court order, so the process is practical and cheap It is much quicker because you do not have to use the normal court procedure The abuser is not charged with any crime, but just ordered to stop the abusive behaviour. Many women or children may be reluctant to go so far as to lay a charge against a family member which could land the person in jail. The abuser only gets into trouble with the law if they disobey the Protection Order.

WHAT IS A PROTECTION ORDER?

A Protection Order is an order from the court telling an abuser to stop abusing someone. You can get a Protection Order against anyone who is abusing you and who is in some form of domestic relationship with you, for example, a parent or guardian; a husband or wife; a romantic partner. You cannot get a Protection Order against your employer or neighbour. The Protection Order can also order:

• The police to take away any dangerous weapons from the abuser
• A police officer to go with the abused person to collect their things
• The abuser to move out of the home
• The abuser not to prevent the complainant from entering the common home
• The abuser to continue paying the rent or bond to provide housing for the complainant
• The abuser to pay money to help the person survive or for medical costs

Police may arrest an abuser who has disobeyed a Protection Order, using the warrant of arrest given at the same time that the Protection Order is given by the court, if the person that has been abused is in ‘imminent harm’. This is a problem because the courts have not said what ‘imminent harm’ is and often the police are reluctant to arrest. They prefer to give the abuser a notice to come to court.

WHO CAN APPLY FOR A PROTECTION ORDER?

Anyone in any of these relationships can apply for a Protection Order:

• Man and wife married according to civil, customary or religious law
• Gay or lesbian couple
• People living together who aren’t married
• People who are engaged
• People who are dating
• People who share the same home (housemates, boarding schools, university residences, and so on)
• Family members of the abused
• Parents of a child or people responsible for a child
• A child under the age of 21, without the help of a parent or guardian
• Any person, including a health service provider, police officer, social worker, teacher, neighbour, friend, relative, minister, who has a material interest (not just being a busybody) in a victim’s well-being provided that the victim consents. They must complete FORM 7: Consent for another person to apply for a Protection Order on behalf of a victim which is available on the Department of Justice website: https://www.justice.gov.za/forms/form_dva.htm No consent from the victim is needed if the victim is a child, mentally retarded, unconscious or for other good reason isn’t able to consent.

The Domestic Violence Act says if a person believes a child is being abused they don’t have to get the child’s permission before getting a Protection Order. It is enough to believe that the child is being abused.

WHERE CAN YOU GET A PROTECTION ORDER?

A person can get a Protection Order from a Magistrate’s Court or High Court. This court must be close to where the abused person lives or works, or where the abuser lives or works or where the abuse took place. The Act says a person can get a Protection Order from a Magistrate’s Court at any time of day or night.

You can also make the application for a Protection Order electronically. Instead of going to court, you can submit an application to the email address of the Magistrate’s Court where you would make the application. You must complete Form 6 for the application which is available on the Department of Justice website: https://www.justice.gov.za/forms/form_dva.htm, and submit it to the correct email address. The list of email addresses is available on the Department of Justice website: https://www.justice.gov.za/forms/dva/20230417-DV-Court-Emails.pdf

Doing an electronic application makes it easier to apply for urgent protection without having to go to court itself.

COSTS OF GETTING A PROTECTION ORDER

It is not necessary to get an attorney to get a Protection Order. Getting a Protection Order in the court is free – the person only has to pay for the Protection Order to be served on the abuser. If they do not have money to pay for the order to be served, then the Act says the court must help with this. (See Problem 3: Getting a Protection Order)