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.