Violence against women is considered a universal problem. According to a study released in 1998 by the South African Medical Council, 50% of the 1 394 men interviewed admitted to physically abusing their female partners at their own homes. In a further study conducted in 2010 it was found that the majority of men and more than half the women surveyed held the belief that women should obey their husbands. Studies show that it is not uncommon for abuse to commence whilst girls are still adolescents and for women to tolerate the abuse they are enduring simply because it is common practice in South Africa.

Domestic violence is rarely reported in South Africa. The percentage of women who report experiencing domestic violence at least once in their lifetime is as high as 59 percent. In the 2002 study conducted by Jewkes et al. more than 97% of the black African women interviewed admitted experiencing some form of physical violence. Alarmingly, of the 97% who admitted experiencing domestic violence, over 95% had experienced physical violence within the previous year.

Domestic violence defined

Section 1 of the Domestic Violence Act, 116 of 1998, defines domestic violence as:

physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the complainant’s residence without consent, where the parties do not share the same residence; or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.

The Act goes on to further define each of these sub-categories of domestic violence.

Legal procedure

Under the Domestic Violence Act, anyone suffering from any form of domestic violence may apply to a specially designated Domestic Violence Court, situated at most Magistrate’s Courts throughout South Africa, for an interim protection order, so as to protect themselves from ongoing or further abuse. Furthermore, anyone may apply for an interim protection order on behalf of a minor child who is the victim of domestic violence.

An interim protection order is granted ex parte, in other words, in the absence of the alleged abuser. The Court is empowered to grant immediate relief, including prohibiting the respondent from:

• committing any acts of domestic violence or enlisting the assistance of third parties to do so;
• entering the complainant’s residence, the shared residence, or certain parts thereof;
• entering the complainant’s place of work or school;
• preventing the complainant from entering the shared residence or remaining there.

The Court may further order that:

• any arm or dangerous weapon in the possession of the respondent may be seized;
• the SAPS accompany the complainant to a specified place to assist in the collection of personal property;
• the respondent make payment in respect of rent or mortgage bonds;
• the respondent pay emergency monetary relief to the complainant;
• the respondent not be allowed contact with a child or that contact only be granted under specific conditions.

The interim protection order must then be served on the respondent by the SAPS and calls upon the respondent to appear in Court on a specified day and time in order to show cause why the order should not be made final. The complainant is required to accompany the SAPS and point out the respondent.

On the return date, the complainant and the respondent are required to appear at court, and the respondent is required to make out a case why the interim order should not be made final. This is done by way of an answering affidavit. The magistrate will attempt to settle the matter between the parties, but where this is not possible, the complainant is afforded the opportunity to file a replying affidavit to the respondent’s answering affidavit, and once all the affidavits and relevant evidence has been filed, the matter is set down for argument. Generally, these matters are argued on the papers before the court, however, where the matter is complex and the court deems it necessary, oral evidence may be heard.

Q & A:

Q: What is considered as domestic violence?

A: The Domestic Violence Act, 1998 defines domestic violence as: Physical abuse, e=sexual abuse, emotional abuse, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent, or any other controlling or abusive behaviour towards a complainant where such conduct harms or may cause imminent harm to, the safety, health or wellbeing of the complainant.