To provide for the issuing of protection orders with regard to domestic violence; and for matters connected therewith.
[NB: The definition of 'court' has been substituted by s. 10 (2) of the Jurisdiction of Regional Courts Amendment Act 31 of 2008, a provision which will be put into operation by proclamation. See PENDLEX.
if it is reasonably possible to do so, hand a notice containing information as prescribed to the complainant in the official language of the complainant's choice; and if it is reasonably possible to do so, explain to the complainant the content of such notice in the prescribed manner, including the remedies at his or her disposal in terms of this Act and the right to lodge a criminal complaint, if applicable.
A peace officer may without warrant arrest any respondent at the scene of an incident of domestic violence whom he or she reasonably suspects of having committed an offence containing an element of violence against a complainant.
Any complainant may in the prescribed manner apply to the court for a protection order.
of the relief available in terms of this Act; and of the right to also lodge a criminal complaint against the respondent, if a criminal offence has been committed by the respondent.
Notwithstanding the provisions of any other law, 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.
The application referred to in subsection (1) may be brought outside ordinary court hours or on a day which is not an ordinary court day, if the court is satisfied that the complainant may suffer undue hardship if the application is not dealt with immediately.
Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application.
The application and affidavits must be lodged with the clerk of the court who shall forthwith submit the application and affidavits to the court.
a person whom the court is satisfied is unable to provide the required consent.
The court must as soon as is reasonably possible consider an application submitted to it in terms of section 4 (7) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which shall form part of the record of the proceedings.
Where circumstances permit and where a Family Advocate is available, a court may, in the circumstances as may be prescribed in the Mediation in Certain Divorce Matters Act, 1987 (Act 24 of 1987), when considering an application contemplated in subsection (1), cause an investigation to be carried out by a Family Advocate, contemplated in the Mediation in Certain Divorce Matters Act, 1987, in whose area of jurisdiction that court is, with regard to the welfare of any minor or dependent child affected by the proceedings in question, whereupon the provisions of that Act apply with the changes required by the context.
[Sub-s. (1A) inserted by s. 19 of Act 55 of 2003.
the respondent is committing, or has committed an act of domestic violence; and undue hardship may be suffered by the complainant as a result of such domestic violence if a protection order is not issued immediately, the court must, notwithstanding the fact that the respondent has not been given notice of the proceedings contemplated in subsection (1), issue an interim protection order against the respondent, in the prescribed manner.
An interim protection order must be served on the respondent in the prescribed manner and must call upon the respondent to show cause on the return date specified in the order why a protection order should not be issued.
A copy of the application referred to in section 4 (1) and the record of any evidence noted in terms of subsection (1) must be served on the respondent together with the interim protection order.
If the court does not issue an interim protection order in terms of subsection (2), the court must direct the clerk of the court to cause certified copies of the application concerned and any supporting affidavits to be served on the respondent in the prescribed manner, together with a prescribed notice calling on the respondent to show cause on the return date specified in the notice why a protection order should not be issued.
The return dates referred to in subsections (3) (a) and (4) may not be less than 10 days after service has been effected upon the respondent: Provided that the return date referred to in subsection (3) (a) may be anticipated by the respondent upon not less than 24 hours' written notice to the complainant and the court.
An interim protection order shall have no force and effect until it has been served on the respondent.
the original warrant of arrest contemplated in section 8 (1) (a) , to be served on the complainant.
the application contains prima facie evidence that the respondent has committed or is committing an act of domestic violence, the court must issue a protection order in the prescribed form.
If the respondent appears on the return date in order to oppose the issuing of a protection order, the court must proceed to hear the matter and consider any evidence previously received in terms of section 5 (1); and consider such further affidavits or oral evidence as it may direct, which shall form part of the record of the proceedings.
is not entitled to cross-examine directly a person who is in a domestic relationship with the respondent; and shall put any question to such a witness by stating the question to the court, and the court is to repeat the question accurately to the respondent.
The court must, after a hearing as contemplated in subsection (2), issue a protection order in the prescribed form if it finds, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence.
to the police station of the complainant's choice.
Subject to the provisions of section 7 (7), a protection order issued in terms of this section remains in force until it is set aside, and the execution of such order shall not be automatically suspended upon the noting of an appeal.
a certified copy of such order, and the original warrant of arrest contemplated in section 8 (1) (a) , to be served on the complainant.
preventing the complainant who ordinarily lives or lived in a shared residence as contemplated in subparagraph (c) from entering or remaining in the shared residence or a specified part of the shared residence; or committing any other act as specified in the protection order.
The court may impose any additional conditions which it deems reasonably necessary to protect and provide for the safety, health or wellbeing of the complainant, including an order to seize any arm or dangerous weapon in the possession or under the control of the respondent, as contemplated in section 9; and that a peace officer must accompany the complainant to a specified place to assist with arrangements regarding the collection of personal property.
In ordering a prohibition contemplated in subsection 1 (c) , the court may impose on the respondent obligations as to the discharge of rent or mortgage payments having regard to the financial needs and resources of the complainant and the respondent.
The court may order the respondent to pay emergency monetary relief having regard to the financial needs and resources of the complainant and the respondent, and such order has the effect of a civil judgment of a magistrate's court.
The physical address of the complainant must be omitted from the protection order, unless the nature of the terms of the order necessitates the inclusion of such address.
The court may issue any directions to ensure that the complainant's physical address is not disclosed in any manner which may endanger the safety, health or wellbeing of the complainant.
order contact with such child on such conditions as it may consider appropriate.
merely on the grounds that other legal remedies are available to the complainant.
If the court is of the opinion that any provision of a protection order deals with a matter that should, in the interests of justice, be dealt with further in terms of any other relevant law, including the Maintenance Act, 1998, the court must order that such a provision shall be in force for such limited period as the court determines, in order to afford the party concerned the opportunity to seek appropriate relief in terms of such law.
authorising the issue of a warrant for the arrest of the respondent, in the prescribed form; and suspending the execution of such warrant subject to compliance with any prohibition, condition, obligation or order imposed in terms of section 7.
The warrant referred to in subsection (1) (a) remains in force unless the protection order is set aside, or it is cancelled after execution.
executed and cancelled; or lost or destroyed.
(a) A complainant may hand the warrant of arrest together with an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any prohibition, condition, obligation or order contained in a protection order, to any member of the South African Police Service.
If it appears to the member concerned that, subject to subsection (5), there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent, the member must forthwith arrest the respondent for allegedly committing the offence referred to in section 17 (a).
The member must forthwith forward a duplicate original of a notice referred to in paragraph (c) to the clerk of the court concerned, and the mere production in the court of such a duplicate original shall be prima facie proof that the original thereof was handed to the respondent specified therein.
the seriousness of the conduct comprising an alleged breach of the protection order; and the length of time since the alleged breach occurred.
Whenever a warrant of arrest is handed to a member of the South African Police Service in terms of subsection (4) (a) , the member must inform the complainant of his or her right to simultaneously lay a criminal charge against the respondent, if applicable, and explain to the complainant how to lay such a charge.
contains a certificate signed by the member concerned to the effect that he or she handed the original notice to the respondent and that he or she explained the import thereof to the respondent.
use of or dependence on intoxicating liquor or drugs.
Any arm seized in terms of subsection (1) must be handed over to the holder of an office in the South African Police Service as contemplated in section 11 (2) (b) of the Arms and Ammunition Act, 1969 (Act 75 of 1969), and the court must direct the clerk of the court to refer a copy of the record of the evidence concerned to the National Commissioner of the South African Police Service for consideration in terms of section 11 of the Arms and Ammunition Act, 1969.
if the court is satisfied that it is in the interest of the safety of any person concerned, the court may order that the dangerous weapon be forfeited to the State.
A complainant or a respondent may, upon written notice to the other party and the court concerned, apply for the variation or setting aside of a protection order referred to in section 6 in the prescribed manner.
If the court is satisfied that good cause has been shown for the variation or setting aside of the protection order, it may issue an order to this effect: Provided that the court shall not grant such an application to the complainant unless it is satisfied that the application is made freely and voluntarily.
The clerk of the court must forward a notice as prescribed to the complainant and the respondent if the protection order is varied or set aside as contemplated in subsection (1).
Provided that the court may, if it is satisfied that it is in the interests of justice, exclude any person from attending any part of the proceedings.
Nothing in this subsection limits any other power of the court to hear proceedings in camera or to exclude any person from attending such proceedings.
No person shall publish in any manner any information which might, directly or indirectly, reveal the identity of any party to the proceedings.
The court, if it is satisfied that it is in the interests of justice, may direct that any further information relating to proceedings held in terms of this Act shall not be published: Provided that no direction in terms of this subsection applies in respect of the publication of a bona fide law report which does not mention the names or reveal the identities of the parties to the proceedings or of any witness at such proceedings.
the respondent resides, carries on business or is employed; or the cause of action arose, has jurisdiction to grant a protection order as contemplated in this Act.
No specific minimum period is required in relation to subsection (1) (a).
A protection order is enforceable throughout the Republic.
Service of any document in terms of this Act must forthwith be effected in the prescribed manner by the clerk of the court, the sheriff or a peace officer, or as the court may direct.
The regulations contemplated in section 19 must make provision for financial assistance by the State to a complainant or a respondent who does not have the means to pay the fees of any service in terms of this Act.
Any party to proceedings in terms of this Act may be represented by a legal representative.
The court may only make an order as to costs against any party if it is satisfied that such party has acted frivolously, vexatiously or unreasonably.
The provisions in respect of appeal and review contemplated in the Magistrates' Courts Act, 1944 (Act 32 of 1944), and the Supreme Court Act, 1959 (Act 59 of 1959), apply to any proceedings in terms of this Act.
fails to comply with any direction in terms of the provisions of section 11 (2) (b) ; or in an affidavit referred to section 8 (4) (a) , wilfully makes a false statement in a material respect, is guilty of an offence and liable on conviction in the case of an offence referred to in paragraph (a) to a fine or imprisonment for a period not exceeding five years or to both such fine and such imprisonment, and in the case of an offence contemplated in paragraph (b) , (c) , or (d) , to a fine or imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
No prosecutor shall refuse to institute a prosecution; or withdraw a charge, in respect of a contravention of section 17 (a) , unless he or she has been authorised thereto, whether in general or in any specific case, by a Director of Public Prosecutions as contemplated in section 13 (1) (a) of the National Prosecuting Authority Act, 1998 (Act 32 of 1998), or a senior member of the prosecuting authority designated thereto in writing by such a Director.
The National Director of Public Prosecutions referred to in section 10 of the National Prosecuting Authority Act, 1998, in consultation with the Minister of Justice and after consultation with the Directors of Public Prosecutions, must determine prosecution policy and issue policy directives regarding any offence arising from an incident of domestic violence.
The National Commissioner of the South African Police Service must issue national instructions as contemplated in section 25 of the South African Police Service Act, 1995 (Act 68 of 1995), with which its members must comply in the execution of their functions in terms of this Act, and any instructions so issued must be published in the Gazette.
Failure by a member of the South African Police Service to comply with an obligation imposed in terms of this Act or the national instructions referred to in subsection (3), constitutes misconduct as contemplated in the South African Police Service Act, 1995, and the Independent Complaints Directorate, established in terms of that Act, must forthwith be informed of any such failure reported to the South African Police Service.
Unless the Independent Complaints Directorate directs otherwise in any specific case, the South African Police Service must institute disciplinary proceedings against any member who allegedly failed to comply with an obligation referred to in paragraph (a).
The National Director of Public Prosecutions must submit any prosecution policy and policy directives determined or issued in terms of subsection (2) to Parliament, and the first policy and directives so determined or issued, must be submitted to Parliament within six months of the commencement of this Act.
The National Commissioner of the South African Police Service must submit any national instructions issued in terms of subsection (3) to Parliament, and the first instructions so issued, must be submitted to Parliament within six months of the commencement of this Act.
The Independent Complaints Directorate must, every six months, submit a report to Parliament regarding the number and particulars of matters reported to it in terms of subsection (4) (a) , and setting out the recommendations made in respect of such matters.
steps taken as a result of recommendations made by the Independent Complaints Directorate.
any matter required to be prescribed in terms of this Act; and any other matter which the Minister deems necessary or expedient to be prescribed in order to achieve the objects of this Act.
which may result in expenditure for the State, must be made in consultation with the Minister of Finance; and may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding one year.
20 Amends section 40 (1) of the Criminal Procedure Act 51 of 1977 by adding paragraph (q).
Sections 1, 2, 3, 6 and 7 of the Prevention of Family Violence Act, 1993 (Act 133 of 1993), are hereby repealed.
Any application made, proceedings instituted or interdict granted in terms of the Act referred to in subsection (1) shall be deemed to have been made, instituted or granted in terms of this Act.
This Act shall be called the Domestic Violence Act, 1998, and comes into operation on a date fixed by the President by proclamation in the Gazette.
'court' means any magistrate's court for a district contemplated in the Magistrates' Courts Act, 1944 (Act 32 of 1944).