• by Samantha Rich
Domestic violence is regulated by the Domestic Violence Act 116 of 1998 and harassment is regulated by the Protection from Harassment Act 17 of 2011.The victim of domestic violence or harassment is called the ‘complainant’ and the perpetrator is called the ‘respondent’. In a case of domestic violence, a complainant is any person who is or was in a domestic relationship with the respondent and who is or was subjected to an act of domestic violence, including any child in the care of the complainant. In the case of harassment, a complainant is any person who alleges that he or she is being subjected to harassment.
Domestic violence means physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the complainant’s residence without consent where the parties do not share the same residence; or any other controlling or abusive behaviour towards the complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant. Domestic violence and harassment are two distinct concepts. Harassment is where the respondent engages in a pattern of conduct that induces fear of harm, including behaviour such as repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be; repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues; repeatedly sending, delivering or causing the delivery of letters, packages, electronic mail or other objects to the complainant; or behaviour which amounts to sexual harassment.
A complainant who has suffered an act of domestic violence or harassment, may apply for a protection order in the area in which they live. In the case of domestic violence, any minor, or any person on behalf of a minor, may apply to the court for a protection order without the assistance of a parent, guardian or any other person. A complainant applies for an interim protection order by completing Form 6. Form 6 must be accompanied by an affidavit written by the complainant stating the facts upon which the order is based, the nature of the order and name of the police station where the complainant is likely to report any breach of the protection order. Once the complainant has applied for the interim protection order, they must complete Form 2, which is an application for a final protection order at their nearest court. Once the clerk of the court receives the complainant’s application, the clerk will give the complainant’s application to the Magistrate. The Magistrate will set a return date for consideration of a final protection order. Additionally, the Magistrate will notify the respondent about the protection order and inform them when to appear in court. On the return date, the Magistrate decides whether or not to make the interim protection order a final order.