Defining domestic violence

Understanding domestic violence and protection procedures

Domestic violence is a pressing social issue in South Africa, affecting individuals and families across all communities. It does not discriminate according to educational status, economic standing, or social class. Defined as a pattern of abusive behaviours perpetrated by one against another, it encompasses various forms of abuse, including physical, emotional, sexual and economic. Violence against women is rampant in our society, and various terms are used interchangeably: gender-based violence, intimate partner violence, and domestic violence. These terms appear synonymous but in fact are not identical in meaning. Domestic violence is often perpetrated against an intimate partner or former partner, whether spouse, cohabitee or relationship partner. However, in its broadest sense, domestic violence also involves violence against children, parents, or the elderly. Furthermore, while gender-based violence refers to violence against women, domestic violence can be committed by a woman against a male partner or within a same-sex relationship of either sex.

Prevalence and challenges  

Statistics highlight the alarming prevalence of domestic violence in South Africa. According to reports, a staggering number of women experience intimate partner violence in their lifetime, with rates significantly higher than the global average. Numerous complex factors contribute to the persistence of domestic violence in the country. Socio-economic disparities, cultural norms, historical legacies, and systemic gender inequalities all play a role in perpetuating the cycle of abuse. Insufficient access to resources, inadequate support services, and the fear of reprisal often hinder survivors from seeking help or reporting incidents of abuse.

Statistics 

Recent crime figures showed that many women and children in South Africa are not safe around people they know and trust. Between July and September 2023, 1,514 incidents of attempted murder involving females were reported. Furthermore, females were involved in 14,401 assault and GBH incidents reported to the police during the reporting period. 

Challenges in addressing domestic violence

Despite legislative advances and ongoing efforts, several challenges persist in tackling domestic violence effectively, including:

1. Underreporting: many cases of domestic violence go unreported due to fear, shame, or lack of trust in the justice system.
2. Resource constraints: limited access to shelters, counselling services, and legal aid poses barriers for survivors seeking help.
3. Cultural and societal norms: deep-rooted beliefs and social attitudes often normalise or trivialise abusive behaviours, making it harder for survivors to seek support.

Legal framework 

The Domestic Violence Act 116 of 1998 (‘the Act”) stands as a crucial legal framework designed to safeguard individuals who experience domestic abuse. The Act outlines the court procedures for protection orders, which prohibit a respondent from committing specifically listed acts of domestic violence against a complainant. However, the Act only applies to people in domestic relationships. The parties are deemed to be in a domestic relationship if:

• They are or were married to each other or have lived together in a relationship like marriage
• They were engaged, dating, or involved in a romantic, intimate or sexual relationship
• They are parents of a child together
• They are family members related by blood, adoption or marriage
• They are in a close relationship and share or have previously shared a residence

If the relationship does not fall into any of the above categories it is not deemed a domestic relationship as defined by the Act. In these circumstances the Protection from Harassment Act 17 of 2011 may apply.

Obtaining a protection order 

A protection order is a court order issued by a Magistrate’s Court, which lists various acts that a respondent is prohibited from committing in relation to a complainant. The purpose of this order is to prevent further harm to the complainant. 

A Protection Order can be obtained in person at the nearest Magistrate’s Court by completing an application accompanied by an affidavit setting out the history and any and all instances of domestic violence. The affidavit should include details such as dates, times, location and nature of domestic violence, any available evidence or proof of domestic violence and any harm or damages caused. Details of why the application should be dealt with urgently and the nature of the protection sought must be included in the application. 

The application is submitted to the clerk of the court who then presents the application to a magistrate. In terms of the directives issued on 14 April 2023, every domestic violence court is required to arrange for court personnel and a magistrate to be available at court after hours and on weekends. 

Interim protection order 

If the magistrate is satisfied there is sufficient evidence to show the respondent has committed or is committing domestic violence, the complainant is suffering harm, and issuing a protection order is necessary to protect the complainant against harm, an interim protection order and a suspended arrest warrant is issued. 

The interim protection order must be served on the respondent personally by the police or the sheriff. The interim protection order must notify the respondent that they may attend the Magistrate’s Court on the return date to show why a final protection order should not be granted. In other words, they must be granted the opportunity to oppose the application. 

Final protection order 

On the return date, the complainant and respondent have an opportunity to present evidence to show why the final protection order should or should not be granted. After hearing the evidence the Magistrate decides whether sufficient proof has been provided on a balance of probabilities that the respondent has committed or is committing acts of domestic violence. If the court is satisfied there is sufficient evidence, it must issue a final protection order (and a suspended arrest warrant), which must be served personally on the respondent.

Enforcing a protection order 

When the court issues a protection order it must also issue a warrant of arrest for the respondent. However, the execution of the arrest warrant is suspended subject to the respondent complying with the terms and conditions of the order. Failing to comply with the terms and condition of a protection order, whether interim or final, is a criminal offence.

If the respondent contravenes the terms and conditions of the protection order, the police are authorised to arrest the respondent. This ensures compliance with the protection order. 

An interim protection order remains valid and in force until it is either replaced by a final protection order or set aside by a court. A final protection order remains valid and in force indefinitely or until it is set aside by a court. 

If you are experiencing domestic violence

SD Law & Associates are experts in family law with deep experience of helping women escape abusive partners. We can serve a protection order on a controlling partner, connect you to support services, and make sure you and your children are safe. 

At Cape Town Divorce Attorneys, we understand how deeply distressing abuse can be. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Breaking chains: understanding the complex barriers to leaving an abusive relationship
• Making your escape
• Moving on from abuse
• Domestic Violence Amendment Bill
• I am frightened of my partner. How do I secure a protection order?

Important resources:

• The Reeva Rebecca Steenkamp Foundation
• Rape Crisis
• Lifeline Western Cape
• POWA (People Opposing Women Abuse)
• Sisters Incorporated
• Huis Jabes

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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