It only takes one trip to the District Magistrates Court to see, and fully realise what our lower courts are faced with on a daily basis. Imagine this - corridors packed with desperate and helpless faces seeking justice and at their last resort. But we don’t have to imagine this, it’s the cold and harsh reality of our country. Sadly, domestic violence and harassment have come to the forefront during the SARS-COV-2 pandemic. Understanding the difference between the Domestic violence Act 116 of 1998 (“DVA”) and the Protection Harassment Act 17 of 2011 (“PHA”) can save the vulnerable a lot of trouble and anguish; please read my previous article on this topic for more information on the difference between the two Acts.

The Protection the Applicant enjoys under the DVA

This article focuses on the DVA and the protection it affords to the Applicant. In terms of the definitions of the Act, the person applying for protection in terms of the Act, the “Applicant” may apply for protection from the following:

• Domestic violence;
• Economic abuse;
• Emergency monetary relief;
• Emotional, verbal and psychological abuse;
• Harassment;
• Intimidation.

The DVA further defines each of the above categories of relief that may be sought within the context of the Act. Importantly, the above list is not exhaustive, but the Act

aims to protect those in domestic relationships from the above unlawful conduct, which can be in the form of an act or failure to act where there was a duty.

Definition of domestic relationship

Applying for protection in terms of the incorrect Act can be problematic for an Applicant’s case and may result in starting the process from scratch. For example, if an Applicant first applied in terms of the PHA, the Applicant must now apply once more in terms of the DVA. The starting point is to determine if there is a domestic relationship with the Respondent, a domestic relationship is defined as follows in terms of the Act:

“'domestic relationship' means a relationship between a complainant and a respondent in any of the following ways:

• they are or were married to each other, including marriage according to any law, custom or religion;
• they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other;
• they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time);
• they are family members related by consanguinity, affinity or adoption;
• they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or
• they share or recently shared the same residence.”

Conduct of proceedings

The process starts with the completion of an application form and a founding affidavit. The next step is to serve the application on the Respondent. If there is a prima facie case (based on the first impression; accepted as correct until proved otherwise) in terms of the application papers, the court may grant an interim protection order whereafter the Respondent must show cause on the return date at court why a final protection order should not be granted. If the Applicant does not have a prima facie case on papers, the court may nonetheless issue the application but an interim protection order will not be granted. The court will then attempt to mediate the matter between the parties. Should mediation fail, a trial may follow on the papers before the court or by way of oral evidence should there be a dispute based on the facts. Similar to maintenance matters, the court’s role is inquisitorial when it comes to adjudicating matters of this nature, however, the onus is on the Applicant to be well prepared. Importantly, evidence as with any other form of dispute plays a vital role when the court needs to determine whether to grant or dismiss an application for a protection order in terms of the DVA.

In terms of the application, where a protection order is sought in the prevention of harassment or any other ground as aforesaid, the Applicant must lay a basis for his/her assertions. Such basis must be evidenced to such an extent that the court, in considering the objective evidence, is satisfied that there is a reasonable possibility of harm or fear. A mere claim of fear is not sufficient as the court indicated in Naidoo v Pillay: “Mere assertions of her fears are insufficient and it is therefore my view that the interim protection order under 871/2015 is hereby set aside in total.” The Applicant will do well to keep a record of all domestic violence incidents, this can be in the form of video recordings, social media posts, instant messaging etc.

Importantly, where there are minor children involved, the court being the upper guardian of all minor children, when considering an application as aforesaid, may cause an investigation to be carried out by a Family Advocate, as contemplated in the Mediation in Certain Divorce Matters Act, 1987. The court may consider the report by the family advocate in arriving at a decision.

What order can the court make?

The court may, when issuing a protection order, prohibit the Respondent from:-

• “committing any act of domestic violence;
• enlisting the help of another person to commit any such act;
• entering a residence shared by the complainant and the respondent: Provided that the court may impose this prohibition only if it appears to be in the best interests of the complainant;
• entering a specified part of such a shared residence;
• entering the complainant's residence;
• entering the complainant's place of employment;
• preventing the complainant who ordinarily lives or lived in a shared residence as contemplated in subparagraph (c) from entering or remaining in the shared residence or a specified part of the shared residence; or
• committing any other act as specified in the protection order.”

The court may even, during the process of divorce, where the parties are bound to separate, issue interim relief pending the finalisation of the divorce proceedings (Pendente Lite). Please note that the above list is not exhaustive.

Conclusion

The court has the power to only make an order as to costs against any party if the court is satisfied that the party has acted frivolously, vexatiously, or unreasonably. The Complainant must have all his/her ducks in a row to ensure that there is a real basis for the relief sought. Domestic abuse should never be tolerated in any form or manner.

Written by Hamlet Dew Heneke, Lee Attorneys