1. Introduction
The Domestic Violence Amendment Act 14 of 2021 (“New Act”) came into effect on 14 April 2023 as per Proc R117 GG48419/14-4-2023. The New Act intends to address two problem areas in South African law; the country’s pervasive problem of gender-based violence and the harm inflicted on children in different households. In order to prioritize victim safety, the changes in the New Act focus on quicker arrests, stricter bail requirements, and prohibiting charge withdrawals.
The purpose of this article is to address and discuss the serious implications that failure to comply with a protection order (interim and/or final) which has been granted by a court can have on an accused, as well as the effects of laying a charge of assault in terms of Domestic Violence under the New Act.
2. Application process in respect of a protection order
Any person is able to apply for a protection order either in terms of the Protection from Harassment Act 17 of 2011 (“Harassment Act”) and/or the Domestic Violence Act 116 of 1998 (“Domestic Violence Act”).
Any person requiring the protection of a protection order must approach their nearest court and complete the Form 6 (in terms of section 4(1) of the Domestic Violence Act) and/or the Form 2 (in terms of 2(1) of the Harassment Act). The clerk of the Domestic Violence and/or Harassment Court will be able to assist you, or you must seek the help of a legal representative who will guide and assist you throughout the entire process including the court appearances. It should be noted that the remainder of this article refers only to Domestic Violence and not harassment.
Once you have made application for a protection order and the court has granted the interim order, a return date will be provided to both the complainant and the accused. The parties must return to court on that date to have the matter heard before a Magistrate. On this date the interim order will either be made final, or the court will refer it to a formal trial if the accused opposes the application for an interim order to be made final. If the accused wishes to oppose the application, he/she will be required to file an opposing affidavit setting out the basis/merits for their defence. At the trial the accused is afforded an opportunity to put their case to the court and the Magistrate has the discretion to either set aside the interim order or make the interim order a final order of court.
3. Effects of non-compliance with a domestic violence protection order
One of the most significant repercussions that a complainant and an accused in terms of a domestic violence protection order should understand is that while that interim and/or final protection order is in effect, the complainant has the right to call the police to have the accused arrested if the accused breaches any one of the terms set out therein. In such a case, the accused will be brought to court in terms of the Criminal Procedure Act 51/1977 (“Criminal Procedure Act”) and the normal rules of criminal procedure will apply.
If the complainant and lodges a charge of assault at a police station in terms of the New Act, he/she automatically applies for a protection order simultaneously, it will also be considered a Schedule 5 offence. In such a case, any member of the South African police service will be obligated to carry out an arrest against the person against whom the complainant laid the charges. According to the New Act, police officers are now required to detain the accused if there is good reason to suspect that there has been domestic violence.
This swift arrest action fulfils several important objectives: (a) immediately reduces the risk of further harm to the complainant, (b) an immediate arrest will deter similar behaviour by the accused in future, (c) it aids to support victims emotionally, physically and legally during a vulnerable time in their life.
4. Criminal aspect of domestic violence
The Criminal and Related Matters Amendment Act 12 of 2021 (“Amendment Act”) was signed into law in January 2022, and one of the most significant provisions was the introduction of stricter bail conditions for offences involving gender-based violence which also includes domestic violence matters.
If a person has been arrested for contravention of a protection order i.e., physical abuse, and/or been arrested due to a complainant laying an assault charge against them, that person will be arrested in accordance with the normal criminal procedure rules and be entitled to bail albeit on stricter terms.
The accused must have their first appearance in court before they are entitled to be released on bail. This essentially means that the accused in terms of a domestic violence matter who has been arrested for non-compliance with the protection order, and/or a charge of assault is not eligible for police bail in terms of section 60 of the Criminal Procedure Act, and/or prosecutor’s bail in terms of section 60A of the Criminal Procedure Act (after hours bail). The accused will only be allowed to make a formal bail application in court. The court will inquire into whether there is any danger to the victim if the accused is released on bail (i.e., do the parties reside in the same household), whether there was a violation of a protection order, and/or any other related considerations.
5. Withdrawal of a Domestic Violence protection order
5.1. Final protection order
If the interim protection order is made a final order of court, that order will remain in force until the death of the complainant and cannot automatically be withdrawn at a later stage. If the complainant wishes to withdraw the application for an interim protection order or wishes to have the final protection order cancelled/set aside, the complainant will have to apply to the court in terms of a written affidavit setting out the reasons why the protection order should be cancelled. The court will then consider the application but is not obliged to withdraw the protection order.
5.2. Assault charge under the New Act
Before the New Act, it was possible for a complainant in a domestic violence matter to simply withdraw their criminal charge against the accused. The New Act has however introduced certain safeguards against the withdrawal of a charge laid against an accused in terms of domestic violence.
The complainant must provide the court with compelling and clear reasons for wanting to withdraw the charge. This must be done in terms of a written affidavit put before court and giving oral evidence if needed.
The New Act further makes provision for state intervention in an attempt to prevent injustice where a complainant might be withdrawing the charge due to coercion, manipulation and/or fear of retaliation. The prosecutor is empowered to continue with the matter against the accused even if the complainant has withdrawn the charge of assault against him/her. This was put in place to ensure that the accused is held accountable for their actions and to deter similar future behaviour.
The intention of the New Act is to provide more protection to the public, unfortunately our criminal justice system’s strict interpretation may severely prejudice an accused where the complainant’s intentions are fraudulent.
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.