Domestic Violence: Can you apply for a protection order against economic/financial abuse?

Dikakanyo Ramakobya

When one thinks of abuse, they turn to confine themselves to physical and or emotional abuse leaving “economic/financial” abuse as an aspect to be determined by the Maintenance Court and or the High Court. The answer is yes, undue and unreasonable deprivation of economic or financial resources is a form of abuse.

This form of abuse is defined in section 1 of the Domestic Violence Act 116 of 1998. It is defined as “a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the compliant requires out of necessity, including household necessities for the complainant, and mortgage bond repayments or payment of rent in respect of the shared residence, b) the unreasonable disposal of household effects or other property in which the complainant has an interest”.

It is clear from the above that, in succeeding with the application, one needs to allege and prove the following, the unreasonable deprivation, entitlement under law or that the complainant requires the financial out of necessity. In consideration of who may apply for the protection order in terms of this section, one must establish and prove the existence of a domestic relationship as defined in terms of the Act as follows:

the parties must be married to each other

the parties live or lived together in a relationship marriage, although they are not, or were not, married to each other, or are not able to be married to each other;

they are parents of a child or are persons who have or had parental responsibility for that child (whether at the same time)

they are family members related by consanguinity, affinity or adoption;

they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

they share or recently shared the same residence.

In conclusion, financial deprivation it is indeed a form of abuse and one can successfully apply for a protection order from a Domestic Violence Court to prohibit the Respondent’s conduct and have him comply with his financial responsibilities towards the Applicant.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-10-29T08:24:04+00:00October 29th, 2018|Uncategorized|2 Comments

What is meant by Testate and Intestate Succession ?

Thabo Kgatle (Legal Assistant) 

Testate Succession

Testate succession is where a person has laid down in writing how his or her estate is to be distributed after he/she has passed on. The document in which the person instructs how his/her estate is to devolve after his/her death is referred to as a will. If the person wants to amend, add or alter his/her will, a document called codicil is then done to effect the necessary amendments, alterations or additions.

In terms of our law a will has to comply with certain stringent requirements in order for it to be valid. It is better to consult a professional for assistance in drafting a will. It is not advisable for a lay person to attempt to draft such a legal document which has far-reaching consequences.

It is further advisable to acquire the services of a professional to assist and advise you on estate planning before you draft your will.

A will is very important to secure the future and well-being of your family and loved ones. It should also be noted that your will can also assist you in forming a trust after your death. This aspect will be discussed in a later article where we discuss trust mortis causa and trust inter vivos.

Intestate Succession

In a situation where a person dies without having made a will or his/her will turns out to be invalid, the law of intestate succession comes into operation when his/her estate has to be administered. The law will identify the heirs to the deceased estate and distribute same to the said heirs.

It is very important to understand that our law provides a tried and tested formula which applies in the case where a person dies without a will or in the event his/her will turns out to be the invalid. This formula is based on the blood relationship between the deceased and his/her intestate heirs.

It should also be noted that it is possible for a person to die partly testate and partly intestate. Where a person makes a will which deals with part of the assets of the estate and fails to indicate what happens to the other assets not included in the will, such assets will devolve in terms of the law of intestate succession.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-10-15T06:38:31+00:00October 15th, 2018|Uncategorized|7 Comments

What is Police Brutality ?

Sibusiso Mtsweni (Attorney)

The police are quite often faced with situations, whereby they must use force. This is necessary for the performance of their duties. In cases where the police must arrest suspects and they resist arrest or attempt to flee, the police are permitted to use force which is reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent suspects from fleeing.

Furthermore, the law tries to protect suspects from the abuse of this power by requiring that the suspect must pose a serious threat to the arrestor or any other person, alternatively the crime that the suspect is alleged to have committed involves serious infliction of bodily harm.

Police brutality occurs when the police  use more force than is necessary to perform their duties. Therefore, police brutality is abuse of power in that excessive force is used to achieve a goal i.e arresting a person which minimal force can achieve

Police brutality is not limited to instances where police officers effect arrest or searches and seizures. Putting a suspect in a cell with no food or water without legal representation and being released without being charged may also be described as police brutality.

Furthermore there have been cases, where police officers assaulted civilians for no reason. In the case of Naidoo v Minister of Police (2015) ZASCA 152 the appellant was assaulted by a police officer whilst seeking assistance. It was not necessary to even use force, the above case reiterates the fact that police brutality is the use of unnecessary power.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-10-02T07:05:42+00:00October 2nd, 2018|Uncategorized|1 Comment