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Can you apply for a protection order against domestic violence, and what is the meaning of a “domestic relationship”?

article-3-SeptemberThe Domestic Violence Act 116 of 1998 (“the Act”), came into operation on 15 December 1998. The purpose of this Act is to protect victims of domestic abuse.   It sets out the procedure for a person to apply to court for a protection order.

Any person applying for this order is referred to as the “complainant” and the person that committed an act of domestic violence is referred to as the “respondent” by the Act.

There is a whole list of what is considered to be an act of domestic violence and it is not limited to physical violence.  Other acts of violence such as emotional, verbal, physiological, economic and sexual abuse, are all deemed acts of domestic violence.  The list extends the protection to intimidation, harassment, stalking and damage to property.

A “complainant” is any person (including a child in the care of the person), who:

  1. is or has been in a domestic relationship with a respondent and;
  2. who is or has been subjected or allegedly subjected to an act of domestic violence.

The Act requires that the complainant and the respondent have to be or should have been in a domestic relationship. The Act defines a domestic relationship as follows:

“domestic relationship” means a relationship between a complainant and a respondent in any of the following ways:

  • hey are or were married to each other, including marriage according to any law, custom or religion;
  • they (whether they are of the same or of the 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;
  • they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time);
  • they are family members related by consanguinity, affinity or adoption;
  • 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
  • they share or recently shared the same residence;

The Act casts the protective net very wide, if the definitions of both domestic violence and domestic relationship are considered.

Recently, the Supreme Court of Appeal delivered a judgment that specifically dealt with the interpretation of the definition of a domestic relationship in the Act.  In Daffy v Daffy (2012) 4 ALL SA 607 (SCA) the court held that the concept of “family” in section 1(x)(d) is extremely wide.  More specifically, the definition of a domestic relationship is written poorly, and that the Act does not give a precise meaning in the definition.

The court held that the Act therefore has to be interpreted in order to clearly define the concepts of “domestic relationship”, “family” and “domestic violence”.  In the interpretation of legislation, and this Act specifically, the underlying purpose of the statutory provisions has to be carefully considered and kept in mind. In other words, the reason why this act was passed by government should be taken into account.

The court considered all the surrounding circumstances to determine whether the complainant’s health, safety and well-being were threatened by the respondent’s acts.

In the judgment, the court remarked on other cases where it was held that a domestic relationship involves persons sharing a common household (people living together under one roof). However, the court held that the legislature must have intended a wider definition, but not so wide as to include a mere blood relationship.

The implication of this judgment is far-reaching.

Every matter will have to be individually considered and the relevant factors taken into account. The definitions in the Act can no longer be interpreted as literally as before the Daffy-judgement.   Every court will have to use its discretion to decide whether the persons are indeed in a domestic relationship and can no longer accept that once they fall under the definition, the Act shall apply mutatis mutandis.

Domestic violence reports will have to be considered more carefully, as the complainant and respondent might not be in a domestic relationship and therefore the Act cannot apply.  Those who investigate the claims of domestic violence will have to be alert and attentive to the narrower definition and ensure that the parties are indeed in a “domestic relationship”.

If you are a victim of domestic abuse and require a protection order for your own physical and emotional wellbeing, you should obtain legal advice sooner rather than later.  Assistance by an attorney or legal aid clinic in the correct application for a protection order will ensure that the requirements are duly met and that the necessary and correct information be noted in the application.

A victim may also approach the court in his or her personal capacity. The clerks of the domestic violence court will assist you and should be friendly, empathetic and well versed in the requirements of the legislation.

It is of equal importance to obtain legal advice and representation if a protection order is sought against you, particularly as the process is sometimes abused and because of the dire consequences such an order can have on the criminal record of the respondent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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