Facebook Stalking and Restraining Orders, beware of the Ex!

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on Thursday, 25 August 2011
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Domestic violence and Facebook

I recently acted in a matter wherein I defended a client on a domestic violence charge who “un-friended” an ex-girlfriend on his facebook profile. After informing his ex that he was going to “delete” her as a friend she approached the magistrate’s court in Cape Town and obtained a restraining order against my client.  She worded her affidavit in support of the interim protection order in such a “creative” fashion that the Magistrate assumed that “delete” actually meant something more serious, possibly a threat to her life. In Domestic Violence cases an applicant usually obtains an interim interdict (without the other party being at court) with a return date upon which the Respondent is called upon to give reasons why the interdict should not be made final. The problem with such orders are that any violation of the order may result in a Respondent being arrested by the South African Police. In my client’s opposing affidavit on the return I stated the following:

The application is… ill-fated and amounts to a mockery of the true objectives of the Domestic Violence Act…Applicant and I (Respondent) never lived together in a relationship or partnership of any sort. [She] was merely a friend like all the other male and female friends that I have… [If] the scope of the Domestic Violence Act were to extend to an area as in this case…any confrontation in the normal scope of a friendship could be construed as domestic violence, with absurd consequences.

Needless to say the ex had to withdraw the application due to the fact that there were simply no grounds to obtain a final order. The case triggered media attention in Noseweek and the editor noted the below.  The full article appear in the September issue of Noseweek and will meet the reader with a shocking example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

Noseweek Issue #143, 1st September 2011

In considering why a man accused of domestic violence might be stripped of his constitutional right to be presumed innocent until proved guilty at a fair trial, Judge Albie Sachs (in a 1999 Constitutional Court judgment) sought guidance from various authorities on the subject. It is clear from the authorities he quoted that what they all have in mind, when speaking of domestic violence, is ongoing, serious violence – or the threat of it – in the intimate, often hidden context of a “domestic relationship”.

So American authority Donna Wills states that “domestic violence is the leading cause of injury to women, a major factor in female homicide, a contributing factor to female suicide, a major risk for child abuse, and a major precursor for future batterers and violent youth offenders”.

South African author Joanne Fedler talks of “intra-family” offences, that include arson, assault,  threats to do bodily injury, obstructing justice, cruelty to children, incest, kidnapping, murder, culpable homicide, rape, forced prostitution, unlawful entry on to property, malicious damage to property, stalking, theft, robbery, unlawful possession of a firearm, involuntary sodomy, extortion, blackmail and sexual assault.

Any magistrate or legal practitioner that rates a man threatening to “unfriend” an interfering ex-girlfriend from his Facebook page on the same scale as the offences listed above is exposing himself and the law to ridicule.

Judge Sachs’s understanding of the nature of domestic violence is fairly mirrored in public perception: when most people hear that a man has been served with a “restraining” or “protection” order in terms of the Domestic Violence Act, they immediately visualise a pathetic woman bruised and beaten to within an inch of her life, surrounded by weeping, traumatised children – and somewhere skulking in the shameful shadows, an out-of-control, violent, probably drunken brute.

The stigma that attaches to such an order is probably only paralleled by a charge of paedophilia.

The law was designed to provide emergency relief to women in imminent danger of life-threatening physical or ongoing emotional abuse by someone with whom they are, or have been in a “domestic” relationship. Police and magistrates are empowered to come to the immediate aid of such women by issuing interim protection orders without prior notice to the accused person.

Interim orders in terms of the Act are,  therefore, issued pretty much on the woman’s say-so. Which is all the more reason why those entrusted with carrying out the law must do so sensibly and with great care.  Inter alia they must take care to ensure that the reasons advanced by the applicant are not frivolous, and that the problem, if there is one, might not be solved in a way less prejudicial to the accused.

It has been disconcerting to discover that there are a growing number of cases where the legal “short cuts” provided by the Domestic Violence Act, and the stigma that a domestic violence order carries, have been abused by unscrupulous lawyers and vengeful, “scorned” women to punish or blackmail their ex-lovers or, more often, as a cheap and nasty way to gain leverage in a divorce action.

The weakness in the system that unscrupulous lawyers have found and are exploiting is really a failure in the administration of justice: too often the police charged with processing these charges, have so little interest in them that they simply rubber stamp any statement that is handed in by a woman who alleges she is “fearful” because she has been “threatened”, without making any attempt to establish the nature and seriousness of the threat, or to establish just how real and imminent the danger might be.

Too many magistrates are in turn  routinely endorsing the applications by issuing “interim” protection orders – the interim nature of the order offering them an “out”: why, a man wrongfully restrained need simply come to court on the return date and have the order set aside! Never mind the scandal and reputational damage he will undoubtedly have suffered in the meantime. And the legal costs involved. And all the postponements in a congested court system, so that, in the real world, it could be months before he gets his day in court.

Even more serious: in the process they are trivialising domestic violence and, ultimately, undermining public confidence in a law that was enacted to deal with a really terrifying and all too pervasive social problem. Our cover story on page 10 is, in my view, as shocking an example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

The Editor

Copyright © 2011 www.noseweek.co.za

About the Author

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

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