TYPES
OF RAPE
The Domestic Violence Act of 1999 (South
Africa):
The Domestic Violence Act broadens the definition of domestic violence to include not only married people, but unmarried people who are in relationships. So, people in same sex relationships, couples living together and members of a family are included - even people who share living space but who are not in an intimate relationship (such as live-in domestic workers and employers, mothers and sons).
The Act says:
A person can be charged and convicted with
marital rape whether the parties are married according to civil, customary
or religious law.
When police arrive at a scene of domestic violence, they must inform victims
that they have a right to ask for police assistance to protect themselves
and their children. Police are allowed to seize firearms and other weapons.
Victims can ask police to help them find a place of safety and for help to
move them there.
Police have to tell victims how to get a protection order (its up to you
whether you get one or not, but the police have to tell you about the PO).
The Act gives police the right to arrest an abuser at the scene of an
incident of domestic violence without a warrant of arrest, if the police
reasonably suspect that the abuser has committed an offence involving
physical violence.
The Act recognises that abuse can take many different forms:domestic
violence; sexual abuse; economic abuse; emotional and psychological abuse;
The Act says domestic violence includes:
physical abuse
sexual abuse
emotional and psychological abuse
intimidation
harassment
stalking (where someone follows you around, or hangs around your home, or
keeps contacting you, when this is unwelcome to you and you find it
threatening)
damage to property
entering a person's home without consent where people do not share the same
home
any other controlling or abusive behaviour that harms or may cause harm to a
person
Getting a Protection Order
You can apply for a PO at the magistrates
court where you live or work, where the abuser lives or works, or where a
violent incident has happened (for a list of magistrates courts in your area
look at the back of the telephone directory where you will find Provincial
and National Government listings, under 'Justice').
You will have to go to the court on two separate days. The first time you go
you will apply and fill in forms and the magistrate might give you an
interim order if he/she believes there is a threat to your safety. If the
magistrate gives you an interim order, he/she will set a return date when
you have to go back to the court. The return date is the second time you
have to go to court, and the abuser is also called to appear in court on
this day.
The protection order does not cost anything, but there may be costs attached
to delivering the protection order to the abuser (in step 3). If the clerk
of the court or the police gives the order to the abuser, there are no
costs. If the order is sent by the sheriff, there will be costs, depending
on how far away the abuser lives, or if he is hard to find. If you can’t
afford these costs, you must tell the clerk of the court when you apply. The
state will then help you pay for the cost of sending the order to the
abuser.
The steps in the process are:
Step 1. You apply for a protection order
You go to the magistrate's court to apply for a protection order. You do not
need a lawyer. The clerk of the court must explain what your rights are and
how to get a protection order.
Take with you any documents like medical reports, photographs of the
injuries, supporting affidavits from family members, neighbors or children
who know about the abuse. Make sure you take your Identity Document and
details such as the abusers work address and home address.
Step 2. The court issues the interim protection order
The magistrate will listen to your story
and read any affidavits that you have brought with you. If the magistrate
believes there is enough evidence of abuse he/she will give you an interim
or temporary protection order that will be in place until you have to go to
court again for the final order.
You can ask the magistrate:
for protection from domestic violence
to have a firearm confiscated, if you explain how this has been used to
threaten you
for the abuser to have no contact with the children
for the police to come with you to collect your belongings at your home
not to say where you have moved to, if you are leaving or have left home
for the abuser to be evicted from the home
for emergency monetary relief, for example for loss of earnings because you
can't work,
medical and dental expenses, accommodation expenses, money for food or
clothes
Step 3. The protection order is served on the abuser
The sheriff of the court, the clerk of the court or the police will serve the protection order on the abuser. You can ask the court to phone you and tell you when the protection order has been served.
You may want to increase your security at
this time. The abuser may be angry and may try to hurt you. Have someone
stay with you or go and stay with friends or family. If you can’t do this,
make sure you have a safety plan and that your children know what to do in
an emergency.
If you do not hear from the court that the protection order has been served
within one week, then you should check with the clerk of the court whether
it has been served or not. Sometimes the sheriff of the court can't find the
abuser.
The protection order tells the abuser that he must be at court on a return
date written on the protection order. He must go to court to tell the
magistrate why the protection order shouldn't be made final. The return date
is usually about 10 days after serving the documents.
Step 4. You go back on the return day
You must go to court on the return day written on the protection order. The
abuser will also be there, and he will tell the magistrate his side. You
will get an opportunity to tell the magistrate your side of the story. You
can also bring people with you who will be able to support your version. You
can ask the police to protect you if necessary. During the court hearing the
abuser is not allowed to question you, only his lawyer is allowed to if he
has one. Only curtain people are allowed to be in the court room when the
magistrate hears your case - the lawyers and officers of the court, the
abuser, witnesses, no more than three people to support you, and no more
than three people to support the abuser.
If the abuser doesn't come to court then the court must give you a protection order.
Step 5. The court issues the final protection order and warrant of arrest
Once the magistrate has heard all the evidence, he/she will issue a protection order. The magistrate also issues a warrant of arrest, to be used if the abuser disobeys the protection order. The clerk of the court serves the final protection order on the abuser. The clerk will also send a copy of the order and the warrant to a police station that you choose.
You get a copy of the order signed by the court (certified copy), together with the warrant. The order lasts until you choose to cancel or change it.
Make sure you keep your copy of the protection order and the warrant in a safe place. Make a certified copy and give it to a trusted friend for safe keeping.
If the abuser doesn't obey the protection order:
you can go to any police officer with the
warrant of arrest which is attached to the protection order
you tell the police how the abuser has broken the protection order
the police will charge him with breaking the protection order
the police must arrest the abuser if you are in danger (they can also do
this without a warrant)
you can also lay additional charges against the abuser - for instance for
assault, or pointing a firearm. (So, he will be charged with breaking the
protection order and assault)
If you lose your warrant of arrest
If you lose your warrant of arrest and protection order you can go to the police station where the order was sent. They can use the order that they received from the court. But if they don't have a copy of the order you must go back to the clerk of the court and get another copy.
What happens to the abuser?
If the abuser is arrested, he will be kept in jail until he goes to court within 48 hours. Besides being charged with disobeying the protection order, he can be charged with any other criminal offence he has committed while abusing you, for example if he assaulted you or pointed a firearm at you. You will need to testify in court and tell about the abuse. If he is found guilty in court, he will be fined or sent to jail.
Changing the protection order
If you want to change the protection order, you can give written notice to the abuser and to the court to apply to change the order or to withdraw it completely. You must say why you want to change it or withdraw it.