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Chapter 8 - Family Law and Violence against Women

Domestic violence

Most victims of domestic violence are women and children. Domestic violence happens when a woman or her child regularly get hurt by her partner by beating them or torturing them mentally, for example by swearing at them or criticising them all the time.

One out of every six women is battered by her husband or boyfriend. But domestic violence is still not talked about openly. It is generally believed that what goes on in a person’s home is their own private affair and people, including the authorities, should not intervene. This leads to a lot of abuse in the home going unpunished. It also makes it hard for battered women and children to look for help.

There are however options available to battered women and a number of organisations that can assist you if you are in such a situation. Getting a Protection Order under the Domestic Violence Act is one of the most important steps that a person who has been abused can take to stop the violence.

See Problem 7: Using the law against domestic violence

See Getting a Protection Order

The Domestic Violence Act (No 116 of 1998)

The Domestic Violence Act recognises that domestic violence is a serious crime against society. The Act aims to give greater protection to people who have been abused.

The Domestic Violence Act defines domestic violence as including married women and children, unmarried women who are involved in relationships or living together, people in same-sex relationships, mothers who live in fear of their children, and people sharing the same living space.

The Act says:

  • A person can be charged and convicted with marital rape whether the parties are married according to civil, customary or religious law.
  • When police arrive at a scene of domestic violence, they must inform victims that they have a right to ask for police assistance to protect themselves and their children. Police are allowed to seize firearms and other weapons.
  • Victims can ask police to help them find a place of safety and for help to move them there.
  • Police have to tell victims how to get a Protection Order.
  • The Act gives police the right to arrest an abuser at the scene of an incident of domestic violence without a warrant of arrest, if the police reasonably suspect that the abuser has committed an offence involving physical violence.

Domestic violence

The Act says domestic violence includes:

  • physical abuse
  • sexual abuse
  • emotional and psychological abuse
  • intimidation
  • harassment
  • stalking (where someone follows you around, or hangs around your home, or keeps contacting you, when this is unwelcome to you and you find it threatening)
  • damage to property
  • entering a person's home without consent where people do not share the same home
  • any other controlling or abusive behaviour that harms or may cause harm to a person

Legal remedies in domestic violence cases include:

  • laying a criminal charge, for example assault, against the abuser (See How do you make a criminal case against someone else?)
  • getting a Protection Order against the abuser under the Domestic Violence Act, including if necessary getting an order to have the abuser’s gun removed, if the abuser has used a gun to threaten the victim, and/or an order that the abuser be evicted from the common home.
See Problem 7: Using the law against domestic violence.
See Problem 8: Getting a Protection Order.
  • making a civil claim against the abuser to claim compensation money for pain and suffering and any medical costs

Sexual abuse

The Domestic Violence Act says sexual abuse is 'any conduct that abuses, humiliates, degrades, or otherwise violates the sexual integrity of the complainant'. Sexual abuse can be:

  • forcing sex on a person (rape)
  • sexually assaulting them in other ways
  • sodomy
  • touching someone in a way that makes them uncomfortable
  • forcing oral sex on a person
  • incest (where a child's parent/brother/sister sexually abuses him or her)

Legal remedies in sexual abuse cases include:

  • laying a criminal charge against the abuser, for example for rape or sexual assault

See Laying a criminal charge against another person.

  • getting a Protection Order against the abuser under the Domestic Violence Act

See Problem 8: Getting a Protection Order.

  • making a civil claim to claim compensation for pain and suffering

See Civil claims.

Economic abuse

Economic abuse is when the abuser doesn't pay a woman maintenance out of spite towards her.

Legal remedies in economic abuse cases include:

  • getting a Protection Order under the Domestic Violence Act for emergency monetary relief, which can include:

See Problem 8: Getting a Protection Order.

  • compensation for loss of earnings
  • medical and dental expenses
  • new accommodation expenses
  • household or family necessities
  • claiming for maintenance under the Maintenance Act.

See Problem 4: Getting maintenance through the Maintenance Court.

The maintenance court process can take some time so if money is needed urgently, it is best to apply for a Protection Order for emergency monetary relief. You must still claim maintenance in the maintenance court as well because the Protection Order will only give emergency monetary relief for a temporary time because maintenance is supposed to be dealt with by the maintenance court. When the maintenance court makes an order, this will replace the part of the Protection Order that gives emergency monetary relief.

Emotional and psychological abuse

The Domestic Violence Act says emotional, verbal and psychological abuse is 'a pattern of degrading or humiliating conduct towards a complainant' including:

  • repeated insults, ridicule or name-calling
  • repeated threat to cause emotional pain
  • repeated exhibition of obsessive possissiveness or jealousy, which is such as to constitute a serious invasion of one's privacy, liberty, integrity or security
  • harassment and stalking

Legal remedies in emotional and psychological abuse cases include:

Getting a protection order

Under the Domestic Violence Act a person can get a Protection Order to stop another person abusing them.

See Problem 8: Getting a Protection Order.

The advantages of this process under the Act are as follows:

  • You do not need an attorney to help you to apply for this kind of court order, so the process is practical and cheap.
  • It is much quicker because you do not have to use the normal court procedures.
  • The abuser is not charged with any crime, but just ordered to stop the abusive behaviour. Many women or children may be reluctant to go so far as to lay a charge against a family member which could land the person in jail. The abuser only gets into trouble with the law if he or she disobeys the Protection Order.

What is a protection order?

A Protection Order is an order from the court telling an abuser to stop abusing someone. You can get a Protection Order against any person who is abusing you and who is in some form of domestic relationship with you, for example, a parent or guardian. In other words, you cannot get a Protection Order against your employer or your neighbour.

The protection order can also order:

  • the police to take away any dangerous weapons from the abuser
  • a police officer to go with you to collect your things
  • the abuser to move out of the home
  • the abuser not to prevent you from entering the common home
  • the abuser to continue paying the rent or bond to provide housing for you
  • the abuser to pay money to help you survive

Police must arrest an abuser who has disobeyed a Protection Order, using the warrant of arrest given at the same time that the Protection Order is given by the court.

Who can apply for a protection order?

Anyone in any of these relationships can apply for a Protection Order:

  • man and wife married according to civil, customary or religious law
  • gay or lesbian couple
  • people living together who aren't married
  • people who are engaged
  • people who are dating
  • people who share the same home (housemates, boarding schools, university residences, and so on)
  • family members of the abused
  • parents of a child or people responsible for a child
  • a child under the age of 21, without the help of a parent or guardian
  • any person, including a health service provider, police officer, social worker, teacher, neighbour, friend, relative, minister, who has a material interest (not just being a busybody) in a victim’s wellbeing provided that the victim consents. No consent from the victim is needed if the victim is a child, mentally retarded, unconscious or for other good reason isn’t able to consent.

The Domestic Violence Act says if you believe a child is being abused you don't have to get the child's permission before getting a protection order. It is enough if you believe that the child is being abused.

Where can you get a protection order?

You get a Protection Order from a Magistrate's Court or High Court. This court must be close to where you live or work, or where the abuser lives or works or where the abuse took place. The Act says you can get a Protection Order from a Magistrate's Court at any time of day or night.

Costs of getting a Protection Order

You don't need an attorney to get a Protection Order. Getting a Protection Order in the court is free - you only have to pay for the Protection Order to be served on the abuser. If you don't have money to pay for the order to be served, then the Act says the court must help with this.

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