“To afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide” (Preamble to the Domestic Violence Act)
A recent Supreme Court of Appeal (SCA) decision underlines the very strong duty on SAPS members to assist victims of domestic violence.
The Domestic Violence Act (“domestic violence” isn’t limited to cases of physical harm – it includes a very wide range of abusive conduct) provides legal protection to victims, especially to those most vulnerable such as women, children, disabled people and the elderly. If you are a victim (or helping a victim) the Police are obliged to assist and cannot shirk their responsibilities. You should in appropriate cases lay criminal charges and/or apply for a protection order against the person committing the abuse. Police officers attending to domestic violence cases must help victims to lay criminal charges, find shelter and obtain medical treatment where necessary.
Applying for a protection order
Go to your nearest Magistrates Court and ask for assistance from the clerk of the court. They will assist you in completing an affidavit wherein the abuse is set out. The Magistrate will then consider the application taking into account the evidence that has been included in the affidavit. If an order is granted, the issue of a warrant of arrest is authorised at the same time. The warrant is suspended on condition that there is no breach of the terms of the protection order. To have the warrant executed, you will need to give details of any violation of the order on a further affidavit and the police will then execute the warrant – but be aware that you will both face criminal charges and risk a damages claim if you intentionally make any false allegations.
Police must pay for victimising a victim
The facts of the case before the SCA were these –
- A woman was hospitalised after being assaulted by her ex-husband. The woman then went to her local police station in an attempt to lay an assault charge against her ex-husband.
- There she was (wrongly) told that she had to get a protection order first, but when the magistrate’s court confirmed that a protection order is not a prerequisite to laying criminal charges, she returned to the police station.
- Her ex-husband was called to the station by one of the officers on duty and they (the woman and the ex-husband) were told to discuss an amicable resolution of the dispute. When this failed, both made statements and laid charges against each other. Both were arrested, charged and detained overnight. The woman was injured next morning when an officer forcibly flung her into a police van to take her to court.
- Finding that the police had acted negligently towards the victim, had subjected her to secondary victimisation and had, by not assisting her, exacerbated her sense of vulnerability, the Court awarded her damages of R280,000 payable by the Minister of Police.
The full judgment in Naidoo v Minister of Police (20431/2014) [2015] ZASCA 152 is available here.
The Domestic Violence Act, 1998 (Act No. 116 of 1998), the Regulations and SAPS’ Domestic Violence National Instruction 7/1999 are all also available on online at ActsOnline.
If you need further assistance, there is a simple but comprehensive guide to “Obtaining a protection order” on the Western Cape Government website here.
The original of this article is posted here on Ashersons Attorneys website.
