DIFFERENCES BETWEEN THE DOMESTIC VIOLENCE ACT AND THE HARASSMENT ACT

There are people who suffer emotional and physical abuse on a daily basis but are not quite sure what they can do to prevent it. There are two options available to them. They can either apply for a Protection Order or apply for a Harassment Order. However, many people do not know the difference between the two and which Order would suit their situation.

A Protection Order is described as being a form of court order that requires a party to do or to refrain from doing certain acts. These orders flow from the court’s injunction power to grant equitable remedies in these situations. The following is required to be present when applying for a Protection Order:

  • Needs to show a pattern of abuse.
  • It has to be a form of domestic violence which includes:
      • Physical violence
      • Sexual violence
      • Financial violence
      • Emotional/verbal violence
  • The violence needs to be directed at the person who wants to make the application.

A Protection Order forms part of the Domestic Violence Act. This means that the abuse needs to be between persons that live in the same house, like brother and sister, or mother and father, etc. An application is made for a Protection Order and thereafter a return date is set. At the return date the Applicant can change their mind and ask that the order be removed. If not, the Order is granted, and it is binding for life. If the Respondent breaches the Protection Order, he/she may receive up to 5 years imprisonment. If the Applicant applies for a Protection Order under false pretences the Applicant may receive up to 2 years imprisonment.

The application for a Protection Order is an ex-parte application, which means that the application can be made without having the Respondent at Court. This can cause problems in the instance where the Respondent is innocent, but does not have a chance to defend himself/herself.

If you’ve been the victim of abusive or threatening behaviour by someone other than a person living with you, or with whom you have a domestic relationship, it may be harassment. There are different things you can do if you’re being harassed, such as applying for a Harassment Order. The following is important to know about Harassment Orders:

  • No pattern is needed, and a first offence can be sufficient for a Harassment Order.
  • No relationship is required, and it can be against someone you don’t even know.
  • No violence is required.
  • Harassment includes: following, messaging, unwanted packages, letters, psychological harm, physical harm, financial harm, etc.

If you decide to apply for a Harassment Order without knowing who it is against, the Court has the power to order a police official to investigate the matter. The application for a Harassment Order takes place in open court, which means that it is not private, which can sometimes prevent victims from making the application. Once a Harassment Order is granted, it is binding for 5 years. If the Applicant wants to withdraw the Order, the Court must be satisfied that the conditions have changed. Breach of a Harassment Order can result in 5 years imprisonment, which is the same punishment for Applicants who make the application under false pretences.

It is important to know that there are remedies available to victims who are in abusive relationships. Whether it is emotional, physical or financial abuse by someone you know or stalking and harassment by someone you don’t know, it is time to take a stand against abuse.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

WHO IS LIABLE FOR THE DAMAGES CAUSED DUE TO A MOTOR VEHICLE ACCIDENT?

What will happen to my vehicle after I have been involved in a motor vehicle accident and who will be responsible for the damages?

Over and above the emotional and economical tension it causes a person and his family, there will always be legal principles that apply.

The most prominent legal field that will apply when a person is involved in a motor vehicle accident is the law of delict. The law of delict will play an important role in determining who will be liable for the damages, if any. If the damages were caused due to the intentional or negligent conduct or omission of somebody else (the third party), the third party would be liable for the damages the car owner suffered. The third party is, however, not without a few defences, but that falls outside the scope of this article.

Another important legal doctrine to be observed in litigation is the doctrine of subrogation as it applies in the law of indemnity insurance. It is an accepted principle of indemnity insurance law that when an insurer fully indemnifies an insured party in the case of loss caused by a third party, the insurer has a claim against the third party in the name of the insured. The policy behind this doctrine is to prevent the insured party from receiving double compensation from both the insurer and the third party.

From a procedural point of view, the insurer obtains the right to institute legal proceedings against the third party in the name of the insured party if the insured party still has an unsatisfied claim against the third party. This principle allows the insurer to become dominus litis (master in the proceeding), but only in name and on behalf of the insured party. The insurer becomes entitled to conduct the proceedings in the name of the insured party provided that the insurer has fully indemnified the insured party and has also indemnified the insured party against the risk of legal costs which may arise from the proceedings. The insurer has no independent claim against the third party, but simply enforces the claim of the insured party for the insurer’s own benefit.

In summary, the car owner will be able to hold the third party liable irrespective if he has insurance or not. If the car owner has insurance he will be able to claim the damages from his insurance and if he does, the insurance will be able to recover the loss in the name of the insurer from the third party. The relationship between the insured and the insurance is a contractual relationship and if any party fails to perform in accordance with the agreement that party will be liable for breach of contract.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

FAST DIVORCES IN CAPE TOWN

Divorces can be heartbreaking, painful, costly and time consuming when parties cannot reach a settlement between themselves.

However, all hope is not lost. Many young couples choose to get married in terms of an antenuptial contract, which states what each party declared to be excluded from the matrimonial estate and will remain each party’s exclusive property. If a couple does not have an antenuptial contract when they choose to go their separate ways, but already have a settlement in mind, whether it be with regard to property or children, they have the option of entering into a Consent Paper.

A Consent Paper states the terms on which the parties choose to divide their property or items that they have accrued over time. A Consent Paper should also deal with the maintenance, child care, medical care and any other issues that can arise with regards to minor children. A Consent Paper can be edited many times before it is endorsed by the Court, as long as both parties are in agreement. Once the parties are in agreement and summons has been served on the Defendant, the parties can obtain a final divorce order as soon as the following week. It is important to take note that where there are minor children involved, the Consent Paper must first be endorsed by the Family advocate in order to make sure that the arrangements regarding the care of such minor children are in line with the provisions of the Children’s Act. If there aren’t any issues with the arrangements as set out in the Consent Paper the Family advocate usually only takes about two days to endorse the Consent Paper.

A divorce order incorporating the Consent Paper may be obtained in the Regional Court or the High Court. The Cape Town High Court has jurisdiction over the Western Cape and is a speedy court when it comes to divorce matters that have been settled. The parties can choose their own divorce date in the Cape Town High Court provided that such date falls on a court date. This notice serves as booking for that date and as notice to the Defendant of such date.

One or both of the parties have to be present in court on the date as set out in the Notice of Set Down. However, it is advisable to use the services of an advocate in order to make the process as efficient and painfree as possible.

A divorce is never pleasant, but one should remember that once upon a time, the same parties that are asking for a divorce now, made promises to each other to take care of each other for better or for worse. Divorces don’t need to cost many years and tears, it can be finalised amicably and quickly. Even though the marriage itself was not meant to be, the memories will last forever.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.