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Protection from domestic violence and harassment in South Africa's Constitutional era
16 July 2018  | Katherine Butler
 
This article outlines the procedure which a complainant should follow in order to bring an application for a protection order and what the different requirements are for applicable Acts in order to succeed with said application. The article also provides critique on the Acts and suggests that stricter threshold requirements should be imposed before ex parte application can result in an interim protection order being granted.

Both the Domestic Violence Act 116 of 1998 and the Protection from Harassment Act 17 of 2011 were enacted to protect vulnerable members of society in South Africa. In addition, the Acts aim to ensure that constitutionally enshrined rights, such as the right to equality, privacy, dignity, freedom and security of the person are not unreasonably and unjustifiably infringed.

Procedure for the complainant to follow

In both instances, the application for a protection order is ex parte, i.e. it is brought by the complainant without notice to the respondent. The application is on affidavit, which can either be completed in full by the complainant, or alternatively the clerk of the court or an attorney can assist the complainant. The magistrate will then consider the application and, if satisfied at first sight that there is evidence that the requirements explained below have been met, must issue an interim protection order. This interim order must then be formally served on the respondent to have effect. The order only remains valid until the return date, on which the respondent must establish why a final protection order should not be granted.

Powers of the Court

The court has broad powers regarding the contents of the order: the respondent may be prohibited from engaging in certain forms of conduct, entering the complainant’s residence or workplace and additional conditions can be imposed.

Comparison between the two Acts and their requirements

Under the Domestic Violence Act, the complainant is required to show, firstly, that he or she is in a domestic relationship with the respondent. A ‘domestic relationship’ is defined broadly, as meaning a relationship between the complainant and respondent, including being married or having been married; co-habitation or having co-habited; being parents of a child or sharing parental responsibilities for that child; having been in a relationship; and sharing or having recently shared the same residence. Secondly, once the domestic relationship has been established, the complainant must show that domestic violence occurred. ‘Domestic violence’ is also defined broadly and includes: physical violence; sexual abuse; emotional, 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.

In contrast, the Protection from Harassment Act does not require a relationship between the parties and complainants can even bring an application against someone unknown to them. An act of violence is not required.  ‘Harassment’ is widely defined and is not restricted to physical or verbal abuse. Basically, conduct causing harm is required. Such conduct includes behaviour like watching, accosting or loitering near the building where the complainant resides, studies or works; engaging in verbal, electronic or other communication aimed at the complainant; the sending or delivery of written communications via e.g. letters, packages, or e-mail and finally, behaviour amounting to sexual harassment. ‘Harm’ means any mental, psychological, physical or economic harm.

Critique

As stated above, both these crucially important Acts are aimed at protecting vulnerable members of society and upholding their constitutional rights. However, the Acts are not above criticism, as the current system is open to abuse. In practice, disgruntled exes and neighbours with long-standing grudges can approach the court, making false or exaggerated allegations in their affidavits and based on this, an interim protection order can be granted, without respondents having an opportunity to defend themselves. Particularly when parties have legal representatives, court proceedings can be drawn out for months with parties also incurring unnecessary legal costs.  The court may decide not to issue a final protection order only after thorough cross-examination of the respondent. Moreover, the statutes stipulate that the court may only make a costs order against a party who has acted frivolously, vexatiously or unreasonably. In practice, a costs order is seldom made against the complainant. In addition, the Protection from Harassment Act provides that a complainant who makes materially false statements in their affidavit is guilty of an offence and is liable on conviction to a fine or imprisonment. However, it is doubtful whether a complainant has ever even been prosecuted.

It is therefore argued that the Acts, due to the broad definitions and procedure followed, fail to adequately safeguard respondents from vexatious applications. Stricter threshold requirements should therefore be imposed before an ex parte application can result in an interim protection order being granted.
 
 
 
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