The increase in the heinous and brutal acts of domestic violence during South Africa’s lockdown period is difficult for many of us to conceptualise. What is most frightening however, is inadequate protection which a protection order is supposedly meant to provide to its victims.
In terms of the Domestic Violence Act 116 of 1998 a Complainant may apply to the Court for a protection order. If the Court is satisfied that there is prima facie evidence that:
- That person against whom a protection order is required is committing, or has committed an act of domestic violence; and
- Undue hardship may be suffered by the Complainant as a result of such domestic violence if a protection order us not issued immediately,
the Court must issue an interim protection order against the person who has committed an act of domestic violence, in the prescribed manner. An interim protection Order shall have no force and effect until it has been served on the person who has committed the act of domestic violence.
In terms of Section 8 of the Domestic Violence Act, whenever a Court issues a protection order, the Court must make an Order:
- Authorising the issue of a warrant for the arrest of the person who has committed the act of domestic violence.
Furthermore, a Complainant may hand the warrant of arrest together with an Affidavit in the prescribed form, wherein it is stated that the person against who the protection order was obtained has contravened any prohibition, condition, obligation or order contained in a protection order, to any member of the South African Police Service.
The Domestic Violence Act is clear on the prescribed manner and the form in which the Court is to assist Complainant’s of domestic violence. The issue though is that many Courts are now taking the law into their own hands and deviating from the prescribed manner and form of domestic violence applications.
Victims of domestic violence are to be issued with a warrant of arrest at the time when the interim protection order is authorised by the Court. The sad reality is that some Court’s are making unilateral decisions, and whilst they are authorising an interim protection order that refuse to issue a warrant of arrest with the interim protection order. This begs the question as to how a victim of domestic violence is then protected by such a protection order when no warrant of arrest is authorized, and will only be authorised on further application to the Court, if the protection order is breached. For some victims this intervention is a little too late, and seemingly the protection order is not worth the paper it is written on. To this end our justice system is failing its citizens.
Until the justice system actually starts protecting the victims of domestic violence, the continued spate in brutal, horrific and unnecessary murders, stabbings, beatings and abuse of many will continue to run rife.
If you have been, or are the victim of domestic violence contact our offices. We are here to help you!
We specialise in domestic violence matters pertaining to family law. For more information about domestic violence please view this link : https://benitaardenbaum.com/family-law/domestic-violence/
Author – Kate Bailey – Hill