The prevalence of domestic violence incidences in our society currently, is worrying. A good number of such cases do not get reported due to various dynamics such as the perpetrator threatening the victim, or the victim being persuaded by other family members to not report the perpetrator as he/she is the ‘only bread winner’ in the family. Amidst all this, to have protection order applications being thrown out by the Courts, is not encouraging at all. In this brief article we discuss some factors which may cause a protection order application not to succeed.
The Domestic Violence Act 116 of 1998 (the Act) provides for, in section 1, conduct that is deemed to be domestic violence;
(a) physical abuse;
(b) sexual abuse;
(c) emotional, verbal and psychological abuse;
(d) economic abuse;
(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 towards a complainant,
where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant;
The definition of domestic violence will be widened under the Domestic Violence Amendment Bill of 2020, to cover sexual harassment, related person abuse, spiritual abuse, elder abuse, coercive behavior, controlling behavior, exposing a child to domestic violence and entering into the workplace of the complainant without their consent.
Courts are there to administer justice by applying the law and they have limited discretion to depart from it where otherwise a serious miscarriage of justice would occur should the strict application of the law be done. In a case where the alleged conduct of the perpetrator does not fall within the confines of what the Act defines as domestic violence and/or abuse as per the above (section 1 of the Act), the respondent (perpetrator) may take their chance and successfully defend the application on such grounds. However, it must be borne in mind that the Courts exercise discretion on this and it is not guaranteed that the application will be thrown out, each case is handled on its own merits.
One of the most important principles in our justice system is the audi alteram partem rule, which is Latin to denote “listen to the other side.’ Before a Court makes a final binding decision, both sides in the matter must be given an opportunity to make submissions to assist the Court in making its decision. This is the reason why, when a protection order application is filed before the Court, an interim order (rule nisi) is granted first on prima facie proof, to dissuade the respondent from inflicting further abuse upon the applicant or the party on whose behalf the applicant brought the application (e.g minor) whilst the matter is still pending before the Court. The interim order must be served on the respondent, inviting him/her to attend Court on a specified date to present their side of the story. Only until the Court hears submissions from both sides, or where the respondent was properly served with the notice but continuously does not avail themselves at Court, can a Final Order be granted. The order normally lists conditions that the respondent must not engage in. It is of paramount importance, therefore, that the respondent be served with the Court process (notice) to attend and make submissions before a final order is granted. Where it cannot be proven that the notice and/or the interim order was served on the respondent to attend Court, a final order may not be granted under the circumstances.
Making a protection order application, like several other legal processes, must be supported by evidence. Where an application is brought without evidence to substantiate, it often is a futile exercise. A respondent will likely challenge and oppose the application on this basis, posing a risk of the application being dismissed.
It is important that parties seeking to apply for a protection order seek legal assistance beforehand, so as not to jeopardise the prospects of their applications.
Our family law department’s legal practitioners assist with commitment and professionalism in such matters as divorce, domestic violence, maintenance as well as a wide array of other matters.
Contact us for comprehensive assistance.
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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