It is increasingly common for one incident to lead to two cases. A complainant applies for a protection order under the Domestic Violence Act 116 of 1998 and, at the same time, lays a criminal charge such as assault or malicious damage to property. Both cases rest on the same facts, but they run on very different timelines.
Protection order applications are designed to move quickly. The criminal case usually takes months, and often longer, to reach trial. This means that the facts are usually tested in the domestic violence court long before the criminal court hears them. That creates a real problem for the person accused. This article explains the problem and what our courts have said about it.
Two Cases, Two Different Procedures
The Domestic Violence Act provides a simplified procedure. In Z.B v W.B [2023] ZAWCHC 314, at para 25, the High Court described the Act's aim as giving victims "an effective, expeditious legal remedy". An interim protection order can be granted on the complainant's affidavit alone, often on the same day. The respondent is then called to court on a return date to show why the order should not be made final.
If the respondent opposes, section 6(2) of the Act requires the court to hear the matter and to consider "such further affidavits or oral evidence as it may direct, which must form part of the record of the proceedings". The order will be made final if the court finds, "on a balance of probabilities", that the respondent has committed or is committing an act of domestic violence.
The criminal case is very different. There the State must prove guilt beyond reasonable doubt, and the accused has the protections in section 35 of the Constitution, including the right to remain silent, the right not to testify during the proceedings and the right not to be compelled to give self-incriminating evidence.
The Dilemma
A respondent who wants to oppose a protection order must usually put their version before the court, either in an answering affidavit or by giving oral evidence. Anything said in that affidavit is said under oath and becomes part of the court record.
That statement does not stay in the domestic violence court. It can later be obtained by the State and used in the criminal trial. An admission in the affidavit may be used as evidence against the accused. Even where there is no admission, any difference between the affidavit and the accused's later evidence can be used in cross-examination to attack the accused's credibility. In addition, the State and the complainant will know the accused's defence in detail long before the criminal trial begins.
The respondent therefore faces a hard choice. If they stay silent in the domestic violence court, the order is likely to be made final on the complainant's version. If they respond fully, they give up much of the protection that the right to remain silent would otherwise give them in the criminal case.
The 2022 Bail Amendments: A Protection Order at the Bail Hearing
The dilemma has become sharper since the Criminal and Related Matters Amendment Act 12 of 2021 came into operation on 5 August 2022. It amended sections 59 and 60 of the Criminal Procedure Act 51 of 1977, which govern bail, in particular for offences involving domestic violence.
First, the burden is now on the accused. Under section 60(11)(c), read with section 59(1)(a)(ii) and (iii), where the offence was allegedly committed against a person in a domestic relationship, the court must order that the accused be detained unless the accused adduces evidence which satisfies the court that the interests of justice permit release. In Kula v S 2023 (2) SACR 52 (NWM), at para 38, the High Court explained that this burden is "analogous to the onus in s 60(11)(b) read with schedule 5".
Second, the accused must disclose any existing protection order. Section 60(11B)(a)(iii) requires the accused or their legal representative to inform the court whether a protection order has been issued against the accused to protect the complainant, and whether it is still in force.
Third, section 60(5) adds new factors that the court may take into account when deciding whether the accused poses a danger. These include whether the accused has a disposition to commit offences against a person in a domestic relationship, and whether the accused has a disposition to contravene protection orders.
Fourth, and most importantly for this article, section 60(12)(b) provides that if the court is satisfied that the interests of justice permit the release of the accused on bail in respect of an offence allegedly committed against a person in a domestic relationship, and no protection order has been issued, "the court must, after holding an enquiry, issue a protection order referred to in section 6 of that Act against the accused". The complainant does not need to bring a separate application. The bail court deals with the protection order itself.
In Van As v Additional Magistrate, Cape Town [2023] ZAWCHC 170; [2023] 4 All SA 231 (WCC), at para 65, the High Court described this enquiry as "a special dispensation, integral to the bail proceedings", conducted as if the complainant had applied for a protection order. At para 66 the court explained that evidence may be given "either orally or by way of affidavits", and that the court must be satisfied on a balance of probabilities that the accused committed an act of domestic violence. The order is a final order, issued without first granting an interim order. The court also stressed that the enquiry "must be conducted in a fair and impartial manner" and that the accused must be told that it forms part of the bail proceedings.
This matters because of section 60(11B)(c). It provides that the record of the bail proceedings, excluding the disclosures required by section 60(11B)(a), forms part of the record of the trial. If the accused chooses to give evidence at the bail hearing, the court must warn the accused that anything he or she says may be used against him or her. In Kula at para 35 the court held that "[i]t was peremptory for the Magistrate in terms of s 60(11B)(c) to warn the appellant", and observed that the failure to do so may affect the fairness of a later trial. Because the protection order enquiry is part of the bail proceedings, anything the accused says to resist the protection order may end up on the record of the criminal trial.
This may change the position discussed in the next section. In an ordinary protection order application the respondent faces a private complainant in a separate civil process. Under section 60(12)(b), the enquiry takes place in the criminal court, as part of a bail application which the accused must bring to obtain release. There is therefore a real argument that the element of State compulsion which our courts have required before granting protection is present. We are not aware of any decision of a higher court on this point.
Can the Domestic Violence Case Be Put on Hold?
The obvious answer seems to be to ask for the domestic violence case to be stayed until the criminal case is finished. Our courts have, however, been reluctant to stay civil proceedings for this reason.
The leading decision is Law Society of the Cape of Good Hope v Randell 2013 (3) SA 437 (SCA). The Supreme Court of Appeal held at para 23 that "[o]ur courts have only granted a stay where there is an element of state compulsion". A person who must decide whether to respond in civil proceedings is not compelled by the State to do so. At para 18 the court noted that the respondent in that matter was "under no compulsion to respond to the allegations", and at para 31 it refused to extend the protection to cases where a litigant simply has a "hard choice" to make.
The court relied on Davis v Tip NO and Others 1996 (1) SA 1152 (W), where Nugent J explained that the right to silence protects a person from State compulsion, not from difficult choices in litigation. Nugent J applied the same reasoning in Equisec (Pty) Ltd v Rodrigues and Another 1999 (3) SA 113 (W), observing that "[t]here is, of course, no legal compulsion upon him to do so". The same approach was followed in Seapoint Computer Bureau (Pty) Ltd v McLoughlin and De Wet NNO 1997 (2) SA 636 (W) and in later cases, including Talksure Trading (Pty) Ltd v Naidoo and Another [2023] ZAKZDHC 50.
These cases dealt with civil and disciplinary proceedings. We are not aware of any higher court having applied them directly to an ordinary application under the Domestic Violence Act, and there is room to argue that a protection order is different. A protection order is accompanied by a suspended warrant of arrest, and breaching it is a criminal offence. A respondent may argue that the consequences are serious enough to justify more protection. Until a higher court rules on the point, however, a respondent should assume that the general rule in Randell will apply and that the domestic violence case will not simply be put on hold.
Practical Options for a Respondent
Although an outright stay is unlikely, a respondent is not without options. Which option is best depends on the facts, and advice should be taken before anything is filed.
First, the respondent can ask for the return date to be postponed. Section 6(2)(c) of the Act allows the court, on application by either party, to adjourn the matter where there is a dispute of fact so that further evidence can be given, and the interim order must then be extended. Separately, a respondent who is prepared to live with the interim order for some time may ask the court, in the exercise of its general discretion, to postpone the matter until after the criminal trial. The complainant remains protected, and the respondent does not have to disclose their defence early.
Second, the respondent can consent to a final order without making any admissions. This avoids giving evidence at all. The respondent must, however, understand that the order will then remain in force and that a breach is a criminal offence.
Third, if the respondent decides to oppose, the answering affidavit should be prepared with the criminal case in mind. It should deal with the facts accurately and carefully, without saying more than is necessary. A careless or exaggerated affidavit can do lasting damage to the defence in the criminal trial.
Fourth, the respondent should remember that the same rules apply to the complainant. The complainant's affidavit in the domestic violence case is also a statement under oath. If it differs from the complainant's statement to the police or from their evidence in the criminal trial, the defence may use it in cross-examination.
Finally, where the protection order is dealt with at the bail hearing under section 60(12)(b), the accused should be particularly careful. Bail applications in these matters are often brought by affidavit. The affidavit should deal with what is needed for bail and the protection order enquiry, and no more. The accused is entitled to be warned in terms of section 60(11B)(c), and the legal representative should ensure that the warning is given and recorded.
What About the Fairness of the Criminal Trial?
The criminal court has a duty to ensure a fair trial. Under section 35(5) of the Constitution, evidence obtained in a way that violates a right in the Bill of Rights must be excluded if admitting it would render the trial unfair or would otherwise be detrimental to the administration of justice. Because a domestic violence affidavit is usually given voluntarily, and not under State compulsion, it will often be difficult to have it excluded on this basis. Each case will, however, depend on how the statement came to be made.
It Is Best to Seek Legal Advice
If you have been served with a protection order application and are also facing a criminal charge on the same facts, or if you are about to apply for bail in a domestic violence matter, it is best to seek legal advice before you file any affidavit or say anything in court. Decisions made at this early stage, often under pressure and within a few days, can affect both cases. An attorney can assess the facts, explain the risks and help you decide whether to oppose, seek a postponement or consent to an order without admissions, while protecting your rights in the criminal case.
Conclusion
The Domestic Violence Act serves an important purpose, and complainants are entitled to a quick and effective remedy. At the same time, a person facing both a protection order application and a criminal charge on the same facts must be careful. What is said under oath in the domestic violence court, or in the protection order enquiry now held at the bail hearing, can follow them into the criminal trial. Our courts have so far held that the choice to speak or remain silent in civil proceedings is a hard choice, but not State compulsion, and they are unlikely to stop the domestic violence case from going ahead.
This article is for general information only and is not legal advice.
