Domestic Violence:
In
studying domestic violence students have to refer to:
·
chapter 21 of the text book Family Law, J
Heaton, LexisNexis;
·
The Domestic Violence Act 116
of 1998
Students can download a copy of the Domestic
Violence Act as well as the application forms from http://www.justice.gov.za/forms/form_dva.htm.
Flow
chart in respect of a domestic violence inquiry:
1.
Client lodges a claim at the magistrate’s court
that has jurisdiction to preside over the matter.
2.
Application is lodges by completing a standard
form obtained from the clerk of the court at the court under oath.
3.
The clerk will peruse the application and open
a file and allocate a reference/case number.
4.
The application will be taken to a magistrate
in chambers where the magistrate will decide whether the application warrants
the issuing of a interim protection order /should be dismissed or whether
further evidence will be required to make a decision by issuing a Notice to
Show Cause.
5.
In the event of an interim order / notice to
show cause being ordered, the application as well as court order will be served
on the Respondent via either the SAPS or the Sheriff.
6.
The Respondent may anticipate the interim order
by filing the necessary notice at court and informing the applicant of his/her
intention to address the application at an earlier date than the return date.
7.
The Respondent has to appear in court on the return date of the application. If he/she
fails to attend court and prima facie proof exist that he/she had knowledge of
the application – the interim order can be made a final order in his absence.
8.
If the respondent attends court on the return
date the matter may be set down for a formal enquiry. At this stage the
Respondent can file an opposing affidavit in either confirming or disputing the
submissions made by the applicant in the application.
9.
Prior to the trial date the attorneys acting on
behalf of the parties will prepare for a formal enquiry by having subpoenas
issued i.r.o. witnesses they intend calling during the enquiry, as well as by
indexing and paginating the bundle of documents they wish to use during the
enquiry.
10.
The respective bundles of documents will be
exchanged prior to the enquiry, whilst a copy will be made available to the
court as well as for the witnesses.
11.
On the date of enquiry the applicant will
firstly present viva voce evidence. After the applicant testified the
respondent’s attorney will have an opportunity to cross-exam, thereafter
re-examination by the applicant’s attorney.
12.
The applicant’s attorney may call further
witnesses to support the application before court. Further witnesses must wait
outside the court.
13.
Once the applicant has finalized his/her case –
the applicant’s attorney will close its case.
14.
The respondent will thereafter present his/her
case. Again the respondent will lead viva voce evidence and steps 11-13 are
repeated.
15.
Once the respondent closes his/her case the
attorneys of the parties will present arguments to the magistrate, where after
the court will make a ruling.
16.
The final order may be rescinded or varied on
application.
