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Press Release: LRC makes sub­mis­sions in court on pro­tec­tion orders


For Imme­di­ate Release: 23 Novem­ber 2016


On 21 Novem­ber 2016, the Legal Resources Cen­tre appeared in the South Gaut­eng High Court (Johan­nes­burg) as ami­cus curiae in the mat­ter of Burger v Burger, a case involv­ing the issu­ing of a pro­tec­tion order under Sec­tion 6(4) of the Domes­tic Vio­lence Act 116 of 1998 (DVA).


Fol­low­ing an inci­dent of domes­tic vio­lence on 18 August 2013, the Krugers­dorp Magistrate’s Court had issued an interim pro­tec­tion order on 2 Decem­ber 2014 against the respon­dent, order­ing that no fur­ther phys­i­cal abuse occur.


Before a final pro­tec­tion order was granted, the respon­dent appealed the interim pro­tec­tion order granted by the Mag­is­trate. There had been con­tra­dic­tory accounts by the appli­cant and respon­dent, with the respon­dent alleg­ing phys­i­cal vio­lence by the appli­cant, and this claim was not addressed by the Mag­is­trate. 


The respondent’s grounds for appeal were, firstly, that it had been a once-off inci­dent and that the objec­tive of the pro­tec­tion order is to pre­vent fur­ther domes­tic vio­lence and the interim pro­tec­tion order should there­fore not have been made final.


Sec­ondly, the law of evi­dence requires that an order can only be issued after both the applicant’s and respondent’s facts have been con­sid­ered together. The Mag­is­trate in this instance was faced with two con­tra­dic­tory state­ments of fact with no fur­ther infor­ma­tion to guide the Mag­is­trate in his under­stand­ing of the inci­dent.


Lastly, the Mag­is­trate had not addressed the alleged phys­i­cal vio­lence claimed by the respon­dent.


We pre­sented the High Court with rel­e­vant inter­na­tional law on domes­tic vio­lence aris­ing from the Con­ven­tion for the Elim­i­na­tion of All Forms of Dis­crim­i­na­tion Against Women (CEDAW), to which South Africa is a sig­na­tory.


We argued that, when issu­ing interim and final pro­tec­tion orders, the con­text should be con­sid­ered – namely, the fre­quency and like­li­hood of future inci­dents, as well as whether the per­son mak­ing the appli­ca­tion is con­vinced of a real, per­ceived risk of phys­i­cal abuse that threat­ens the safety of them­selves or their chil­dren.


We fur­ther pre­sented argu­ment that when final­is­ing pro­tec­tion orders under Sec­tion 6(2) of the DVA, hear­ings should be inquisi­to­r­ial, thereby allow­ing a court to proac­tively direct its own inquiries, instead of rely­ing exclu­sively on the infor­ma­tion pro­vided by the par­ties.


We argued that, in final­is­ing pro­tec­tion orders, South African case law pro­vides that the onus should fall upon the Respon­dent to prove that the order should not be finalised.


Judg­ment was reserved.







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