Author: Abigail Monyolo

​Introduction

South Africa faces a persistent epidemic of Gender based violence (GBV) despite its efforts to address it. It is a deeply entrenched, systematic crisis that is often described as a second pandemic that disproportionately affects women, children, and the LGBTQIA+ community. Recent statistics indicate that one in five women will experience some form of domestic violence in their lifetime, with many of these cases involving either physical, emotional, or psychological harm.

While the Domestic rates remain high, South Africa has made strides in offering legal protection through the Domestic Violence Act 116 of 1998 (DVA). This Act provides victims with a pathway to safety by offering tools such as protection orders to help individuals escape abusive situations. This article aims to determine the effectiveness of protection orders in South Africa obtained against gender-based violence.

Legislative framework;

Recent Legislative Reforms

In terms of recent legislative reform, after recent protests, the government has now invoked the Disaster Management Act 57 of 2002 to classify gender based violence and femicide as a national disaster. The country previously used this legislation to respond to natural and public health emergencies such as floods, drought, and the COVID-19 pandemic.

The Domestic Violence Act 116 of 1998

The purpose of this Act is to afford victims of domestic violence the maximum protection from domestic abuse that the law can provide. It does this by granting victims the right to a protection order. Thus, anyone in a domestic relationship may apply for a protection order. A protection order is a legal instrument used to protect the victims against further violation by the perpetrator. 

Application for a Protection Order

Section 4 of the DVA sets out who can apply for a protection order. In terms of section(4)(3)(a) of the DVA, not only may a complainant bring an application forward, but an application for a protection order may also be brought on behalf of the complainant by a functionary or any other person who has a material interest in the well-being of the complainant. Section 4(3)(b) of the DVA states that the application must be brought with the written consent of the complainant, except in circumstances whereby the complainant is a child, and the court believes that the application is in the best interests of the child, or the person is unable to provide the required consent. Section 4(4) of the DVA states that any child or any person acting on behalf of a child may apply to the court for a protection order without the consent or assistance of a parent, guardian, or any other person.

Interim protection order

In terms of Section 5(1) of the DVA, the court must, as soon as reasonably possible, consider an application submitted for an interim order, consider additional evidence as it deems fit, which includes oral evidence or evidence given by way of affidavit. This will form part of the record of the proceedings. Section 5(2) of the DVA states that if the court is satisfied of the following;

1. There is prima facie evidence that.
2.  The respondent is committing, or has committed, an act of domestic violence.
3. The complainant is suffering or may suffer harm as a result of such domestic violence.
4.  and the issuing of a protection order is immediately necessary to protect the complainant against the harm contemplated

  The court will issue an interim protection order in the prescribed manner against the respondent. The order must then be served to the respondent in a prescribed manner and include a return date, wherein the respondent will appear in court to state why the interim order should not be made final.

​Final protection order 

In terms of Section 6(1) of DVA, where an interim order was issued and the respondent fails to appear at the return date stated on the interim order and the court is satisfied that proper service has been effected on the respondent and the application contains prima facie evidence that the respondent has committed or is committing an act of domestic violence, the court must then issue a final protection order.

Enforcement Gaps and Practical Challenges;

Delays and Administrative Barriers

Inconsistent enforcement by the police and legal system remains a major issue. Police officials are often unable to distinguish between an interim and a final protection order. As a result, some police officers often claim that they can only assist victims if they have a final protection order. The DVA does not explicitly state whether the interim protection order is the same in terms of enforcement as a final protection order. However, because an interim protection order is a legal document, which is temporary but has prohibitions and conditions forbidding domestic violence against the victim, it should be leverage enough for victims to at least be assisted. This just further emphasises the police’s lack of knowledge of protection order procedures and the failing to enforce them effectively, as the main difference between an interim and final protection order is that the alleged perpetrator needs to appear in court on the return date stated on the interim order to state why the order should not be finalised.

Police Non-Compliance and Lack of Training

A significant gap in the effectiveness of protection orders relates to the lack of specialised training for law enforcement officers, such as police officers, prosecutors, and judges, on handling domestic violence matters sensitively and effectively. This lack of training may lead to a range of issues, such as improper handling of cases, failure to collect necessary evidence, for example, of a protection order violation, and re-traumatisation of victims during interactions with the justice system. An example of the lack of knowledge from police officers includes some victims being turned away when trying to report domestic violence in Cape Town police station. They were turned away because they did not have a protection order, which causes a barrier to victims whose first point of contact is often the police.

​Recommendation for Improving Effectiveness 

It is recommended that, in order to improve the effectiveness of protection order thorough and regular training workshop needs to be conducted to ensure that police officers know the procedures of protection orders. To improve their knowledge, information regarding DVA matters and protection orders needs to be easily accessible, so that when queries or doubts arise, they can be clarified. This can be done through leaflets or a regular internal newsletter/training. Police officers may also conduct domestic violence case police assessments and reports that will identify challenges and knowledge gaps.

Conclusion

The ongoing battle of the GBV crisis in South Africa can be described as a gross human violation that has claimed many women’s and LGBTQIA+ members’ lives in recent years. Whilst the legislative framework for protection orders in South Africa is robust, the practical success depends on the consistent actions of the police and the efficient court process. It is hoped that these recommendations will increase the effectiveness of protection orders in South Africa.