Know your rights

2013-02-28 00:00

WE have all been appalled by recent and on-going attacks on women and children.

It has brought about a flurry of women activist groups coming forward in an uproar about the protection of these vulnerable members of society.

Dreadful statistics of the number of women and children, who are invariably defenceless against domestic violence, always come to the fore in these situations.

On December 15, 1999, the Domestic Violence Act 116 of 1998 came into force, purportedly providing effective, inexpensive relief for victims of domestic violence.

The average man on the street is ignorant as to what falls under the ambit of the act and the protection and relief that can be obtained.

There is the misconception that domestic violence is physical abuse and protection can only be sought by someone who has been beaten and subjected to physical harm.

The act provides protection to, among others:

• cohabiting adults (whether the opposite or same sex);

• elderly family members, children or grandchildren;

• family members related by consanguinity, affinity or adoption;

• parents of a child or people who have or had parental responsibility for that child;

• people who are involved in an engagement or dating relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; and

• people who share or have recently shared the same residence.

The definition of conduct, which constitutes domestic violence, is in fact open-ended, but may be divided into categories, which include physical, emotional, psychological, sexual and economic abuse.

Domestic violence includes:

• intimidation;

• harassment;

• stalking;

• damage to property;

• entry into the residence of the victim without consent, where the parties do not share the same residence; and

• any other controlling or abusive behaviour towards a victim where such conduct harms or may cause imminent harm to the safety, health or wellbeing of the victim.

The act may help victims of domestic violence by granting certain orders such as.

• A person may be prohibited from entering someone’s home and place of work. They may even be prohibited from entering certain rooms in a house if the people live together.

• Financial relief, where a person has been ordered to continue paying the bond over the property, or school fees.

• It is common where someone is ordered not to threaten or illicit the help of a third party to commit the abuse. It is even more common where someone is ordered to have no contact with the other, in any form whatsoever. This includes physical contact, telephonic communication, e-mail, SMS, BBM and Facebook. This incorporates any form of what could be construed as contact.

The question obviously arises as to what happens when the person who committed the acts of domestic violence is in breach of the order.

If the conditions of the order are contravened, the victim hands a warrant of arrest, together with an affidavit setting out the breach of the order, to any member of the South African Police Service (SAPS).

If it appears to the SAPS that there are reasonable grounds to suspect that the victim may suffer harm as a result of the breach, there are several remedies available to the SAPS, one of which is arrest and detention, and a criminal record will more than likely ensue.

Domestic violence is a double-edged sword, and covers such a wide range of eventualities, and is often abused. Experience has shown that relief is often sought out of malice. We at Garella Attorneys have been saddened to see women bringing vexatious applications prohibiting fathers from having contact with his child, with nothing more than trumped-up charges, this having devastating consequences on the relationship between father and child.

There should be consolation that we have the Domestic Violence Act to rely on. However, the harsh reality of domestic violence in our country comes down to the frustrations with the court processes in that there is a dreadful bottleneck of matters trying to get into court, which is clearly indicative of how domestic violence is rife in our country. It is soul destroying to be outside the domestic violence court on a Monday morning to see the benches crammed full of predominantly women waiting in the queue to get their applications lodged at court.

The outcome of a domestic violence applications often pivots on the efficiency and experience of the attorneys handling the proceedings. Make sure you hire the best legal help you can afford if you are involved with one of these applications.

• Claudia Garella founded Garella Attorneys, which specialises in family, commercial and insolvency law.

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