Fase previa I: El malteado

The research indicates that, on the whole, protection orders are being used as intended, and are proving to be useful interventions in many cases.

Both men and women are using the procedure successfully, although women (as the more prevalent victims of domestic violence in society) logically use the law more frequently. Complainants tend to approach the court for serious domestic violence of multiple types, and not for small or trivial matters or single incidents of domestic violence. Most complainants who seek protection orders are successful in obtaining at least an interim order, containing many of the terms which they requested. Courts apparently scrutinise the requested terms and in most cases add or subtract provisions before issuing the order – indicating that magistrates are recognising instances where a complainant at risk needs more protection than he or she may realise, or asks for protection that is not justified by the evidence presented.

Conclusions and

Recommendations

“Sometimes as a leader,

I wonder what kind of society I

am living in; one where women no

longer fear snakes or murdering

dogs, but murdering men.”

His Excellency Hifi kepunya Pohamba, President of the Republic of Namibia, speech at launch of National Gender Policy, 8 March 2012

Both requests and orders for exclusive occupation of the joint residence are common, but these are primarily requested and granted in situations where the joint home is owned or leased solely by the complainant, or jointly by both parties. The belief in some quarters that the protection order mechanism is frequently abused to deprive ‘innocent’ respondents of their homes is clearly a myth.

One of the chief complaints encountered is that the application form needs to be simplified, without of course sacrificing the detail which magistrates need in order to grant an urgent

ex parte order. We have identified several ways in which the forms and procedures set forth

in the law could be simplified and streamlined.

The other chief complaint concerns the capacity of government personnel to assist complainants with protection order applications. Clerks, police and magistrates all claimed that this work overburdens then, and complainants generally have to approach both a clerk of court and a police station in order to complete an application form. While simplification of the forms and procedures will be of some assistance with this problem, the growing number of protection order applications is pointing to a need for specialised and dedicated personnel at courts and police stations – at least in Namibia’s larger centres.

A related problem concerns service of protection orders, which is probably the weakest area of the law’s implementation. New approaches to service of legal documents should be explored, but in the meantime police need to be encouraged to make time for this task as an important aspect of crime prevention.

Some intentional and unintentional misuse of protection orders was identified by key informants – particularly as “the poor man or women’s divorce” – but the research indicates that this is the exception and not the rule.

Although many people complain about delays in the procedures, the typical case was not actually very protracted and most interim protection orders were granted promptly after application, although not usually achieving the ideal of being granted on the day of application. One of the most worrying findings was the enormous attrition between interim protection orders and final protection orders – which seems to stem from a mixture of reconciliation between parties, abandonment of cases and confusion on the part of both courts and complainants over how interim orders are converted into final orders. Such case disappearances may involve intimidation of complainants which the system is not picking up.

The research also worryingly suggests that domestic violence being directed against children is not being picked up or addressed; the vast majority of the cases involved adult complainants, with children featuring only incidentally.

Although the research provided little information on breaches of protection orders, anecdotal evidence, combined with the lack of cases on breaches, suggest that violations of protection orders may not be taken as seriously as they should be by police and sometimes even by complainants themselves.

Some of the applicants later came back to thank us, saying “we are a happy family now”.

High Court review of an interim protection order, 2011

While the Legal Assistance Centre was concluding this research report, the fi rst High Court

review of a protection order was conducted. This review points to some problems and issues

which are instructive.

The parties in this case were an 89-year-old father and his 33-year-old son. The father had

sought and obtained an interim protection order against the son on the basis that he had

committed economic abuse. Threats of assault were alleged, but there was no allegation

of actual acts of physical violence. The confl ict seemed to be part of a family dispute which

saw some extended family members siding with the son and some with his estranged wife.

Father and son were residing on adjacent farms, and there were a range of underlying disputes

between then about livestock ownership and alleged livestock theft, marked by the laying of

various criminal charges. The key fi ndings of the case were as follows:

1. Basis for urgent review: Even though the Combating of Domestic Violence Act provides for

appeals in respect of both interim and fi nal protection orders, the High court is authorised

by the High Court Act 16 of 1990 to review the proceedings of any lower court on various

grounds, including where there is a “gross irregularity in the proceedings”. A review is permissible

in such circumstances despite the fact that the order in question was an interim order rather

than a fi nal order, and despite the fact that there were other options for redress including

appeal or anticipation of the return date to accelerate a fi nal decision on the matter.

2. Domestic relationship: One of forms of domestic relationship covered by the Combating

of Domestic Violence Act is “parent and biological or adoptive child”. However, since the

defi nition of a child in the Act is a person under the age of 18 years, this provision could

not be the basis of a domestic relationship between the parties to this case. However,

they had a domestic relationship in terms of the provision of the Act which covers

“family members related by consanguinity, affi nity or adoption” who have “some connection

of a domestic nature” since they appeared to have some fi nancial dependency. The High

Court noted that the Combating of Domestic Violence Act was intended “to bring within its

reach a very broad spectrum of familial relationships of a domestic nature, with the purpose that

protection orders may be sought by aggrieved family members without having to seek recourse

to more expensive and less expeditious civil or criminal proceedings to keep the family peace.”

3. Poor utilisation of forms: The High Court held that the pro forma nature of the forms

provided is presumably to assist the complainant in making application for the protection

order and to assist the magistrate in issuing the protection order by setting out the

full range of possible provisions. However, as with any form, the danger exists that the

person completing it may not take care to do so clearly and carefully, resulting in “a sloppy

administrative process with little attention being given to crucial details”.

4. Irregular amendments: The original interim order contained some provisions which were

confusing and outside the authority of the law. At the time of a postponement of the

enquiry, the magistrate extended and amended the interim order, but without following

the prescribed procedure for modifi cation of protection orders. The High Court set aside the

interim protection order on the grounds that the impugned order was inept and the purported

‘amendment’ of the order was procedurally invalid.

Katjivikua v Magistrate: Magisterial District of Gobabis and Another (A 208/2011)[2011] NAHC 340 (4 November 2011)