By Rinse Nyamunda
IN my previous article, I outlined and discussed the various abusive behaviours that can entitle a person to apply for a protection order. In this article, I am going to discuss how an abused person or a person in a representative capacity, who wishes to use the court system for relief or protection, can apply for a protection order against an abuser.
Under the Domestic Violence Act, any person who is abused, acts with the consent of an abused or any person having care or custody of an abused minor or any person acting as an abused’s representative, with or without the consent of the abused, can apply for a protection order.
However, for abused minors and persons who suffer from mental illnesses, permission must be sought from courts by persons acting in a representative capacity in an application for a protection order.
The first step in an application for a protection order is to make a report at the nearest police station.
Once a police report has been made, a police officer is required to carry out investigations on the allegations of abusive behaviour perpetrated on an abused by an abuser.
This police report is made on the understanding and assumption that every police station is staffed by at least one police officer with relevant knowledge in domestic violence, victim friendly or other family-related matters. Immediately after making a police report, a police officer is required to carry out investigations into the allegations of abuse perpetrated on an abused by an abuser.
On the basis of these investigations, a police officer must advise an abused or the person acting in a representative capacity on how to obtain shelter or medical treatment or assist the abused in any other suitable way.
A police officer must also advise the abused of his or her right to apply for relief and the right to lodge a criminal report against the abuser.
In order to protect the dignity of the abused, the abused or his or her representative has the right to request that the investigation and statement of abuse be carried out or taken by a police officer of the same sex as that of the abused person. For instance, a woman, who is abused can ask for a woman police officer to take her statement and conduct the investigation.
Once investigations are complete, and a police officer is satisfied that there is a risk to the safety, health or well-being of the abused and, moreso, about the seriousness of the abusive behaviour or any other factors that make a police officer reasonably believe that an abuser has committed or is threatening to commit abusive behaviour, he/she is required to arrest an abuser without a warrant of arrest.
Without any delay after the arrest, an abuser must be taken to court by the police to answer to charges of abusive behaviour perpetrated on an abused person where the court will grant the necessary relief or protection to an abused.
The second step is an option available to an abused where the abused is not satisfied by the services of a police officer investigating the reported case of alleged abusive behaviour or domestic violence.
In this instance, an abused person or his or her representative, shall have the right to approach the courts directly for assistance. Depending on the nature of abusive behaviour perpetrated on the abused, the court may require an application for a protection order to be supported by an affidavit.
In situations where an abused person is not represented by a lawyer, the clerk of court shall advise the abused of:
lThe available relief under the circumstances, such as not allowing an abuser to visit the place where an abused person resides or works;
lThe effect of an order which may be granted by court and how it may be enforced;
lHis or her right to lodge a criminal report against an abuser if a criminal offence was committed by an abuser; and
lThe right to claim compensation for the loss or injury suffered by the abused as a result of an abusive behaviour of an abuser.
This second option can also be used by persons who represent an abused person without their consent.
The purpose of approaching a court first is to seek permission to represent an abused person without his or her consent.
Such an abused person may be a minor or a person suffering from mental illness.
In granting the permission to apply for a protection order, a court shall consider the reasons why the consent of an abused person was not obtained and whether or not it will be in the best interests of an abused person.
Once permission is granted by a court, an application for a protection order can be made to court by a representative without the consent of an abused person. In order to prevent any further harm or injury to the abused, an application for a protection order is dealt with or heard by a court on an urgent basis.
If a court is satisfied that the abused person may suffer undue abuse at the hands of his or her abuser if the application is not dealt with urgently, a court may, at its discretion, decide to deal with an application for a protection order even outside the normal working hours or work days.
In such circumstances, an application for a protection order can be dealt with or heard outside working hours or during weekends or public holidays.
Once an application for a protection order has been lodged with a court, a court shall deal with it by either granting the relief sought, refusing to grant the relief sought or granting any appropriate alternative relief based on the circumstances of the case.