Intimate Partner Violence

By 8th Aug 2018 Nov 6th, 2019 Family and Matrimonial Law

According to a study conducted by the Medical Research Council and Centre for Public Mental Health, on average, a woman dies every 8 hours at the hands of her partner. However, despite public outcry, social movements, various laws and Government strategies in place, violence against women at the hands of their partners persists. Moreover, despite its abhorrence, the overwhelming amount of news headlines and cases appear to have desensitised people to the issue and, to an extent, violence perpetrated against women has become normalised in South Africa.

However, in celebration of Women’s Day this article seeks to highlight and provide guidance on what can be done to assist women who are suffering domestic violence and abuse.

Protection Mechanism

In recognising the Constitutional rights of equality and freedom and security of the person and acknowledging that ‘domestic violence is a serious social evil’, The Domestic Violence Act 116 of 1998 (“the Act”) was enacted with the purpose of giving survivors of domestic violence the maximum protection of the law and placing obligations on police officials to ensure that the Act is implemented.

The Act defines domestic violence as: physical, sexual, emotional, verbal psychological and economic abuse, intimidation, harassment, stalking, damage to property, entry into a house without consent and any other controlling or abusive behaviour within the context of a domestic relationship.

 

A domestic relationship encompasses, inter alia, parties who are married, live or lived together (both heterosexual and same-sex partners), in a relationship of a marital nature but who are not in fact married, parties who are or were in an engagement, dating or customary relationship, including an actual or perceived romantic and parties who have been in an intimate or sexual relationship of any duration.

A key feature of the Act is that it gives survivors of domestic violence an opportunity to obtain a Protection Order against the perpetrator of abuse. The process for obtaining a Protection Order is as follows:

  • the survivor approaches the Magistrates Court and applies for an Interim Protection Order;
  • the application is usually made by way of Affidavit which must set out, inter alia, that the survivor was in a domestic relationship with the perpetrator and that an act of domestic violence was committed;
  • once all the necessary forms and Affidavits have been completed the matter is heard by a Magistrate who, if satisfied that there is a prima facie case of domestic violence and that undue hardship may be suffered by the survivor if a Protection Order is not issued, will issue an Interim Protection Order;
  • a Sheriff or member of the police service will then serve the Interim Protection Order on the perpetrator and from the moment of service, the Interim Protection Order provides immediate protection and will be valid throughout South Africa;
  • the effect of the Interim Protection Order is that a Suspended Warrant of Arrest is issued at the local police station and the police will act on same, by arresting the perpetrator, if the perpetrator contravenes the Order;
  • the Interim Protection Order will specify a date whereby both the survivor of the domestic violence and the perpetrator must attend Court in order for the perpetrator to show cause why a FINAL Protection Order should not be granted;
  • if the perpetrator fails to appear in Court on the specified date, the Court will issue a Final protection order where it is satisfied that the Interim Protection Order was served and that there is prima facie evidence of domestic violence. A Final Protection order will also be issued if the Court finds, on a balance of probabilities, that acts of domestic violence were committed;
  • as already mentioned, a Suspended Warrant of Arrest will accompany a Protection Order, whether it is Interim or Final. If the perpetrator contravenes the Protection Order, the survivor must inform the police who must then arrest the perpetrator.

Whilst the process appears daunting and impractical for women who urgently need protection, the intended purpose of the Protection Order is to give survivors of domestic violence an accessible legal tool that is intended to prevent perpetrators from committing further acts of violence.

The Issues:

Unfortunately it is almost standard to hear stories of women who try to report domestic violence to the police only to be turned away because ‘it is a domestic issue that must be dealt with at home’ or situations where police simply fail to intervene where a perpetrator has breached a protection order. Thus, women, out of fear for their lives and the lives of their children, often don’t report their abuse.

Moreover, research conducted by Mosaic, a non-governmental organisation, and the Gender, Health and Justice Research Unit of UCT indicates that many women who apply for Protection Orders later withdraw them due to the history and severity of the violence they have experienced and the threats they receive.

Furthermore, despite the Acts progressive nature, it does not provide strategies which account for the social and cultural norms and practices in which domestic violence against women is embedded. Thus, the deeply rooted inequalities and entrenched system of patriarchy and violence in South Africa hinders the Protection Order mechanism’s potential to protect women and prevent further violence at the hands of their partners.

Conclusion

While there are many steps that can be taken to reduce the aforementioned instances of domestic violence, such as; making domestic violence a crime, establishing specialised domestic violence courts and ensuring that police as well as court officials are properly trained to deal with domestic violence cases, ultimately, additional programmes and strategies need to be put in place to tackle the root of the problem.

Notwithstanding what is set out above, the solutions highlighted herein are generally effective tools when utilised properly and if obtained in the correct manner and therefore, survivors of domestic violence should still endeavour to get Protection Orders against their abusers as they have the potential to act as a deterrent and also mandates the police to arrest the perpetrator should they breach the Protection Order.

Moreover, there are specialist family law attorneys who are able to assist in the process or, if funds are an issue, there are NGO’s such as POWA or MOSAIC that can be of assistance to survivors of domestic violence both in terms of legal and psychological support.

Should you require any more assistance on this topic please feel free to contact us on [email protected] for assistance from one of our specialist Family Law Attorneys.