What counts as domestic violence under the Act?

The most common reason people do not apply for a protection order is that they do not believe what is happening to them counts. There has been no assault, or the assault was a long time ago, or the conduct is something they find hard to describe to a stranger at a counter.

This guide is part of our Domestic violence and protection orders: the complete guide, which links every guide on the topic.

South African law has never confined domestic violence to physical assault, and since the Domestic Violence Amendment Act 14 of 2021 took effect on 14 April 2023 the definitions are considerably wider than most people realise. The amended Act expanded the definitions section to about fifty defined terms.

What the Act covers

The Domestic Violence Act 116 of 1998 covers a list of conduct that goes well beyond violence in the ordinary sense:

• physical abuse, including assault and the threat of it, depriving someone of their liberty, drugging them without consent, and withholding their medication
• sexual abuse
• emotional, verbal and psychological abuse, including degrading or humiliating conduct, threats of suicide or self-harm, harming a pet, and threatening to reveal someone's sexual orientation or private information
• economic abuse, including withholding money or resources the complainant is entitled to or needs, disposing of household property without their permission, and using their money without permission
• intimidation and harassment
• damage to property
• entry into the complainant's residence without consent, where the parties do not share that residence
• any other intimidating, threatening, abusive, degrading, offensive or humiliating behaviour towards the complainant

In each case the conduct must harm the complainant, or inspire the reasonable belief that harm may be caused. The 2021 amendments added to that list and widened several of the existing definitions.

Stalking used to be listed separately. It no longer is, because the definition of harassment now covers it in more detail: unreasonably following, watching or pursuing someone, loitering near their home or work, repeatedly contacting them electronically whether or not they answer, accessing their messages without permission, tracking their movements with technology, and sharing private or humiliating messages or images about them.

What the amendments added

Coercive behaviour. Compelling or forcing the complainant to abstain from doing something, or to do something, that they have a lawful right to do or not do. This is the conduct that traps people without a mark on them: control exercised by pressure rather than by force.

Controlling behaviour. Making the complainant dependent on or subservient to the abuser, for example by isolating them from sources of support, exploiting their resources, depriving them of the means to be independent, or regulating their everyday behaviour.

Sexual harassment. Unwelcome sexual attention, remarks, gestures or messages from the respondent, including about the complainant's sexual orientation or gender.

Related person abuse. Threatening or harming a member of the complainant's family or household, or someone close to them, in a way that harms the complainant.

Spiritual abuse. Inciting harm against the complainant because of their religious or spiritual beliefs, preventing them from practising their faith, or manipulating their beliefs to justify abusing them.

Elder abuse. Directed at an older person in a domestic relationship, which recognises that the people most often abused in a household are not always partners.

Exposing a child to domestic violence. Intentionally causing a child to see or hear domestic violence, or to experience its effects, is now itself domestic violence, rather than the child being treated as a bystander to somebody else's problem. Where a child may need care and protection, the court can also ask a social worker to investigate, and the guide to the Children's Court explains what can follow.

Unauthorised entry into the complainant's workplace or place of study. This closes an obvious gap. Where the parties no longer live together, the place a person can most reliably be found is where they work or study, and the Act now names it.

Who it applies to

A protection order under this Act requires a domestic relationship, and that too is broader than people assume. It covers spouses and former spouses, including in a customary or religious marriage, people who live or lived together in a relationship like a marriage, people who are or were engaged or dating, including an actual or perceived romantic, intimate or sexual relationship of any duration, people in a close relationship who share or shared a residence, parents of a child or people who have or had parental responsibility for the child, and family members related by blood, marriage or adoption.

It is not limited to romantic relationships and it is not limited to current ones. A person no longer living with the respondent can still apply.

Where no domestic relationship exists, the equivalent remedy is a harassment order under the Protection from Harassment Act 17 of 2011, which follows a similar process at the same courts.

Applying for a protection order

The process is deliberately accessible.

It is free. There is no fee to apply for a protection order.

You do not need an attorney. The clerk of the court assists with the forms, and applications can be made at the magistrate's court for the area where you or the respondent live (even temporarily), study, work or do business, or where the abuse happened.

An interim order can be granted the same day, without the respondent present, if the court is satisfied there is prima facie evidence that the respondent has committed domestic violence and that you are suffering or may suffer harm as a result, and that an order is immediately necessary to protect you.

A suspended warrant of arrest is issued with the order. This is the part that gives a protection order its teeth. If the respondent breaches the order, the complainant takes the warrant and an affidavit to the police, and the respondent can be arrested. Breaching a protection order is a criminal offence in its own right.

The interim order is served on the respondent with a return date, on which both sides may appear and the court decides whether to make the order final. The guide to the protection order hearing explains what happens on that day.

Our guide on how to apply for a protection order sets out the forms and the steps, and the amendments also made provision for applications to be lodged electronically with the court, which matters for applicants who cannot safely get to a court.

What an order can actually do

A protection order is not only an instruction to stop. A court can prohibit the respondent from committing any act of domestic violence, from entering the shared residence or the complainant's residence, workplace or place of study, and from contacting the complainant at all.

It can also order the seizure of a firearm or dangerous weapon, order the respondent to pay rent or bond instalments, award emergency monetary relief for losses such as medical costs, lost earnings and relocation, and regulate contact with children. The police may be directed to accompany the complainant to collect personal property.

What to bring

The application is decided on your affidavit, so the detail matters more than the emotion.

Write down each incident with a date, or the best approximation of a date, and what actually happened in plain words. Bring messages, call logs, photographs, medical records, and the names of anyone who saw or heard anything. Where the conduct is coercive or controlling, describe the pattern rather than a single event: what you are not allowed to do, who you are not allowed to see, how money is controlled, what happens when you do not comply.

That is the kind of evidence the amended Act was written to accommodate, and it is exactly what complainants tend to leave out because it does not look like violence.

What the police are obliged to do

One of the reasons people do not report is an expectation of being turned away, and it is worth knowing that the Act places duties on the police rather than leaving it to individual discretion.

A member of the South African Police Service who is called to a scene of domestic violence, or to whom a complaint is made, must render such assistance as the circumstances require, including helping the complainant find suitable shelter and obtain medical treatment. The member must also inform the complainant of their rights, including the right to apply for a protection order and the right to lay a criminal charge, and must hand over a notice explaining those remedies in a language the complainant understands.

Those two things are separate and both are available. A protection order is a civil remedy that regulates future conduct. A criminal charge is about conduct that has already happened. Applying for one does not replace the other, and complainants are frequently told, wrongly, that they must choose.

The 2021 amendments strengthened the obligations sitting on officials who encounter domestic violence in the course of their work, precisely because the gap between what the Act required and what happened at police stations had been so well documented. A police officer's failure to comply with these duties is misconduct under section 18(4) of the Act, and the Civilian Secretariat for Police Service must be informed of it. If a station refuses to assist, that refusal is itself a matter to escalate, to the station commander and then to the Civilian Secretariat.

Safety comes before paperwork

Nothing in this article should be read as suggesting that the right first step is always a court.

If you are in immediate danger, call the police on 10111. The GBV Command Centre on 0800 428 428 operates 24 hours a day and is staffed by social workers who can counsel you and refer you for help. Childline on 116 is a free 24-hour line for children, and Lifeline's national counselling line is 0861 322 322.

Leaving is the most dangerous point in an abusive relationship, which is why safety planning matters more than legal strategy in the short term: somewhere to go, a bag already packed, copies of identity documents, and somebody who knows the plan. A protection order is a good deal more useful to a person who has somewhere safe to be when it is served.

If you are the respondent

A protection order is a serious matter and it should be answered on the return date rather than ignored. An order made in your absence still binds you, and breaching it is a criminal offence.

If the allegations are untrue, or the relationship is one where cross-allegations are being made, appear on the return date with your own affidavit and evidence. Applications are also occasionally used tactically in the middle of a divorce or a contact dispute, and a court will consider that, but only if it is put before the court properly.

Worked example

This example is illustrative. Thandi has not been assaulted. Her partner controls the household bank account and gives her money weekly against receipts, has told her she may not see her sister, checks her phone each evening, and has twice arrived at her workplace unannounced after she went out with colleagues.

Before April 2023 she would have had to frame this as emotional or economic abuse and hope it was accepted. Under the amended Act it is squarely covered: the financial control is economic abuse, being isolated from her sister and having her everyday behaviour regulated is controlling behaviour, being prevented from doing what she is lawfully entitled to do is coercive behaviour, reading her phone without permission can be harassment, and the unannounced arrivals at her workplace are expressly named.

She applies at the magistrates' court nearest her work, without a lawyer and without a fee. The affidavit sets out the pattern with dates, the weekly receipts, and the two workplace incidents. That is a protection order application with a proper foundation, and the fact that nobody has ever hit her does not weaken it.