Article by Fawzia Khan of Durban Attorney Firm : Fawzia Kahn & Associates
As we approach Women’s Day this 9 August 2018, and with the focus being on empowering women, I thought it appropriate to take another look at how women in abusive relationships could protect themselves. It is however important to note that not all victims of domestic abuse are female. There are instances where men are victims of abuse.
The Domestic Violence Act was formulated to allow fast and easy access to vulnerable persons caught up in an abusive relationship. There is no need to get an attorney to assist, as the clerks at the domestic violence section can assist in completing the application forms. The clerks are not allowed to charge a fee for any advice or help they may give you. Below are the guidelines to get help if its needed.
Firstly you will need to go to the magistrate’s court where you or the abuser resides, works or where the abuse has occurred. The clerk of the domestic violence section will provide you with an application form for a protection order. You will need detail the abuse. This is a sworn statement which means it’s made made on oath. The clerk will open a file for you with a case number and will give your file to the magistrate.
The magistrate must decide whether or not you qualify for a protection order and needs to be satisfied that you will suffer undue hardship if an interim protection order is not granted to you. If the interim protection order is granted, the clerk will advise you which is the date (called the return date) that you and the abuser will need to come back to court. The magistrate will issue a notice to appear in court, to your abuser, that will inform him/her that an application for a protection order has been made and that he/she must appear on the return date give his/her side of the story. The clerk will give you copies to be served on the abuser either via the sheriff of the court or the police and one for yourself.
The police or the sheriff will go to the address that you have written on your form and will serve the copy of the interim protection order on your abuser. Once the protection order has been served, the “return of service” form is then returned to the court. The respondent is required to file and serve his/her opposing affidavit to place his/her version of events to the court, and to explain on oath why the interim protection should not be made final.
Of course as the granting of an interim protection order is made in the absence of the respondent, there may be instances where an applicant who is not being abused, but will claim abuse in order to get some end result from the respondent. Very often the true state of events will unfold when both parties present their versions to the magistrate. The court will be in a position to either dismiss the interim protection order, if the applicant was unable to prove abuse, or will make the interim protection order, final. This means it’s an order which will remain in place for life. The order can be set aside by both parties, at a later stage. However this is at the discretion of the court.