South African Law
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Protection Orders

 

The purpose of the Domestic Violence Act 116 of 1998 http://www.justice.gov.za/legislation/acts/1998-116.pdf has been created to, “afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure the relevant organs of the state give full effect to the provisions of this Act, and thereby convey that the State is committed to the elimination of domestic violence.”
First and foremost, please have a read through the Domestic Violence Act 116 of 1998. It covers everything that you will need to know from applying for a protection order, to the implementation thereof.   Below are two important definitions taken from the Act.

 

The Act defines a ‘domestic relationship’ as; the relationship between the respondent and complainant in any of the following ways:


a) They were or are married to each other, including marriage according to any law, custom or religion;
b) They (whether they are of the same or 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;
c) they are parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time);
d) they are family members related by consanguinity, affinity or adoption;
e) 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
f) they share, or recently shared a residence.
The Act defines ‘domestic abuse’ as the following:
a) physical abuse;
b) sexual abuse;
c) emotional, verbal and psychological abuse;
d) economic abuse;
e) intimidation;
f) harassment;
g) stalking;
h) damage to property;
i) entry into the complainant’s residence without consent, where the parties do not share the same residence; or
j) any other controlling or abusive behaviour toward the complainant.

 

What happens when I need protection?

 

The first step to getting a protection order is applying for one.  You need to apply to any court within the area which;


a) the complainant permanently or temporarily resides, carries on business, or is employed;
b) the respondent resides, carries on business, or is employed; or
c) the cause of action arose.


You will need to complete the necessary Form 2 application for protection order.  There is a section where you fill in the reasons that you are requesting a protection order, but you can write your statement beforehand and attach it to the application form along with certified copies of any evidence you may like to submit.  Make sure you always retain your original evidence.   You need to be very clear in your statement; whatever you write is the only material that may be cross examined in court. Remember that the court likes to see a pattern of behaviour and the acts of domestic violence pertain to you.  Your application and supporting documentation will then be submitted to the Magistrate.

 

If your application is approved, you will receive an interim protection order, and a court date.  The order, along with your supporting documentation will then need to be served on the respondent, a minimum of 10 working court days before the court date on the order and the interim order only becomes effective once it has been served on the respondent.  You can either give it to the sheriff to serve (they may not be able to serve the papers if they can’t get hold of the respondent), or go to a police station in the area where the respondent is and a police officer will come with you.  The respondent will need to sign the return of service form and you need to keep the signed service form to submit to court.  The order will have a court date on it, which you will need to attend.  This court date is for the respondent to oppose the order should they chose to. If you miss the court date the interim order is dropped.  If the respondent does not attend and the court is satisfied that proper service was effected (you have the signed return of service) and according to your application the respondent has or is committing acts of domestic violence, a permanent protection order will be granted.  That order will need to be served in the same way as the interim order.

 

If the respondent decides to oppose the order, the process can get drawn out.  Some courts ‘hear’ the evidence on paper.  In other words they read your statement and make a decision based on what you submitted.   Other’s ‘hear’ the matter orally. Meaning that you may be cross examined by the respondent’s lawyer and your lawyer will be able to cross examine them.  Some combine oral with papers.  On a positive note, the respondent, if without legal representation, may never question you directly.  They may ask the court and the court will pose the question to you.

 

Whether opposed or unopposed, the court, when deciding to grant your protection order may also include additional conditions like seizing a dangerous weapon from the respondent, sending a peace officer to accompany you to retrieve your belongings, impose financial obligations on the respondent with regards to paying rent or a mortgage, the respondent may have to pay emergency monetary relief to you, refuse contact with a child or have supervised visitation thereof, chose not to disclose your address and finally add any other conditions it sees fit.

 

A protection order, when granted is permanent and may only be changed or dropped if the court is approached and it is proven that this request is not in any way against your will.  When there is a contravention of the protection order, the respondent can be arrested and a case may be made against them.  Having the law stand between you and domestic violence definitely a good thing!  Ultimately a protection order doesn’t work if you are dead, so you will still need to be aware, for your own safety.

 

Domestic violence application forms

 

You can have a look online at http://www.justice.gov.za/forms/form_dva.htm for any form you may need. Here is a list of the forms covered on the page.  
Form 1 [J471] / Afr - Notice to complainant in a case of domestic violence [Regulation 2] http://www.justice.gov.za/forms/dva/dva_form%2001.pdf
Form 2 [J480] / Afr - Application for Protection Order [Regulation 4] http://www.justice.gov.za/forms/dva/dva_form%2001.pdf
Form 5 [J523] / Afr - Notice to Respondent to show cause (submit response) why a protection order should not be issued [Regulation 7]
http://www.justice.gov.za/forms/dva/dva_form%2005.pdf

Form 6 [J551] / Afr - Protection Order [Regulation 8 (a)]
http://www.justice.gov.za/forms/dva/dva_form%2006.pdf

From 7 [J566] / Afr - Protection Order (no interim protection order issued) [Regulation 8 (b)]
http://www.justice.gov.za/forms/dva/dva_form%2007.pdf

Form 9 [J591] / Afr - Affidavit for purposes of further warrant of arrest [Regulation 10]
http://www.justice.gov.za/forms/dva/dva_form%2009.pdf

Form 10 [J608] / Afr - Affidavit regarding contravention of protection order [Regulation 11]
http://www.justice.gov.za/forms/dva/dva_form%2010.pdf

Form 11 [J645] / Afr - Notice to appear before court [Regulation 12 (1)]
http://www.justice.gov.za/forms/dva/dva_form%2011.pdf

Form 12 [J649] / Afr - Application for variation or setting aside of protection order [Regulation 13]
http://www.justice.gov.za/forms/dva/dva_form%2012.pdf

 

THE FOLLOWING FORMS ARE ISSUED BY COURT OFFICIALS ONLY
Form 3: Information notice to complainant [J506] [Regulation 5]
Form 4: Interim Protection Order [J507][Regulation 6]
Form 8: Warrant of Arrest [J590] [Regulation 9]
Form 13: Notice of variation or setting aside of protection order [J653] [Regulation 14 (1)] - See more at: http://www.justice.gov.za/forms/form_dva.htm#sthash.LGGTLceX.dpuf

 

Parental rights and responsibilities

 

A huge concern when planning your future is what will happen to your children if you and your partner are no longer together.  Different conditions apply depending on whether you and your partner are married, cohabiting or living separate lives.  The Children’s Act 38 of 2005 http://www.dsd.gov.za/index.php?option=com_docman&task=cat_view&gid=60&Itemid=39 covers the child’s rights to have access to both parents and provides that the best interests of the child are of paramount importance and must be taken into account in all matters concerning the care, protection and wellbeing of the child.  
Parental rights and responsibilities are the responsibility to care for the child, maintain contact with the child, to act as guardian to the child, and to contribute to the maintenance of the child.  If an individual has full rights and responsibilities, they are entitled to all of the rights set out in the Children’s Act.  If an individual has specific rights and responsibilities they only have specific rights in terms of the Act, say for example they are a guardian to the child.

 

Biological mothers

 

The biological mother of a child whether married or unmarried, has full parental rights and responsibilities with respect to the child. She attains those rights solely on the fact that she has given birth to the child.


Married biological fathers

The biological father has full rights and responsibilities in respect of the child if:

  • a) he is married to the child’s mother; or
  • b) he was married to the child’s mother at the time of the child’s conception, birth, or any time between conception and birth.


Unmarried fathers

The Act does not give automatic, inherent rights to unmarried biological fathers like it does to biological mothers.  The only time they will have automatic parental rights and responsibilities is under the following conditions:

  • a) at the time he was living with the mother in a permanent life partnership; or
  • b) if he, regardless of whether he is living with the mother or not, consents to be identified as the father of the child or successfully applies for an amendment to the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Act, or pays damages in terms of customary law; and contributes, or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.

 

Mediation


If there are any disputes between the biological parents regarding any of the above criteria, they need to apply to the Family Advocate, a social worker, or other qualified person.  A parenting plan will be drawn up and agreed on by both parties, but before making it an order of the court, the Family Advocate, or court concerned must be satisfied that the plan is in the best interests of the child.  A parental rights and responsibilities agreement only takes effect if registered with the Family Advocate, or if it is made an order by the High Court, divorce court in a divorce matter, or a children’s court on application by the parties to the agreement. If the parents are unable to reach an agreement after mediation, they can approach the Court to dispute the issues.  The Court will normally refer the matter to the family advocate for investigation. It is important to note, maintenance is completely separate from visitation!  Find more information on the Family Advocate here http://www.justice.gov.za/services/consult-fam-adv.html

 

Divorce

 

The Divorce Act 70 of 1979 http://www.justice.gov.za/legislation/acts/1979-070.pdf lays out all the requirements regarding divorce.  Basically a marriage may be dissolved for two reasons; irretrievable breakdown of the marriage or the mental illness or the continuous unconsciousness of a party to the marriage.  In South Africa, we have a no fault system of divorce which means that a divorce will be granted if one of the marriage parties believes that there  has been an irretrievable breakdown of the marriage relationship and that there are no reasonable prospects of restoring it.  This means that a marriage can be dissolved even if the other party does not want to get divorced. Religious marriages conducted by a registered marriage officer, civil unions and civil marriages can only be dissolved by an order of the court.

 

Irretrievable breakdown

 

The court may accept the following as evidence of the irretrievable break down of a marriage;

  • a) the parties have not lived together as husband and wife for a continued period of at least one year immediately prior to the date issuing summons for the divorce;
  • b) the defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship; or
  • c) the defendant was declared a habitual criminal and is undergoing imprisonment.

 

Mental Illness


The court may grant a decree of divorce, if the defendant;

  • a) has been admitted as a patient to an institution in terms of the reception order;
  • b) is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
  • c) is being detained as a mentally ill convicted prisoner at an institution.

 

Continuous unconsciousness

 

  • a) the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of divorce action; and
  • b) after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.

 

How to go about getting a divorce

 

The party that wants the divorce must issue a summons against the other party, stating that the marriage has broken down and there is no reasonable prospect of restoring the relationship.  Included in the summons must be; which matrimonial property regime governs the marriage , as well as provision for the division of the estate, either stating that both parties has entered into a prior agreement, or asking the court to divide the joint estate or enforce the provisions of the Antenuptial Contract.  Arrangements with regards to any children born or adopted during the marriage also need to be included.

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