Divorce Attorney Cape Town

Domestic Violence and Abuse in South Africa


“When you’re in a broken family and your role model is a violent male, boys grow up believing that’s the way they’re supposed to act. And girls think that’s an accepted way men will treat them.” –Rep. Jim Costa

On 25 November 2012 the 16 days of activism for no violence against women and children commenced and will end on 10 December 2012. It is an international campaign and takes place every year from 25 November (International Day for the Elimination of Violence Against Women) to 10 December (International Human Rights Day). During this time, the South African Government runs a 16 Days of Activism Campaign to make people aware of the negative impact of violence on women and children and to act against abuse. It is estimated that one in every four women is assaulted by an intimate partner every week, that one adult woman out of every six is assaulted by her partner, and that in at least 46% of these cases, the men involved also abuse the woman’s children.

It is extremely important to increase awareness of abuse and build support for victims and survivors of abuse. South Africa has one of the highest incidences of domestic violence in the world. And, sadly, domestic violence is the most common and widespread human rights abuse in South Africa. Every day, women are murdered, physically and sexually assaulted, threatened, and humiliated by their partners, within their own homes. Organisations estimate that one out of every six women in South Africa is regularly assaulted by her partner. More than 56 000 rapes and sexual offences were reported in South Africa in the 2010 financial year. This equates to 154 reported sexual offences each day. It is conservatively estimated that only one in ten sexual offences are reported, due to a lack of faith in the system. In 2010, most incidents of assault 35,7%, occurred at home. 29,8% of sexual offences took place at home and 18,5% of sexual offences took place at someone else’s home. The available data also indicates that incidents of domestic violence, in which especially women are victims, are increasing. A recent survey conducted in Gauteng found that half the women living in Gauteng 51.3% have experienced abuse or violence, and 75.5% of men admitted to perpetrating abuse or violence against women. The same study found that one in four women had experienced sexual violence, and 37.4% of men disclosed perpetrating sexual violence

According to Independent Complaints Directorate (ICD) statistics last year, up to 65% of police stations were not compliant with the Domestic Violence Act, which means that they were not providing the necessary support to victims of domestic violence and 53% of domestic violence victims were incorrectly told they were not allowed to lay a charge after being abused and 96% of domestic violence victims were not given information on their rights, such as having the right to apply for a Protection Order when they go to their local police station. It is inconceivable that a woman who has had to endure the trauma of being abused by a family member or partner is subjected to the indignity of having their case poorly managed by the police.

Although the exact percentages are in dispute, there is a large amount of cross-cultural evidence that women are subjected to domestic violence significantly more often than men. In addition, there is consensus that women are more often subjected to severe forms of abuse and are more likely to be injured by an abusive partner. Determining how many instances of domestic violence actually involve male victims is difficult. Some studies have shown that women who assaulted their male partners were more likely to avoid arrest even when the male victim contacts the police. Another study concluded that female perpetrators are viewed by law enforcement as victims rather than the actual offenders of violence against men. Other studies have also demonstrated a high degree of acceptance of aggression against men by women. Domestic violence also occurs in same-sex relationships. Gay and lesbian relationships have been identified as a risk factor for abuse in certain populations. Historically, domestic violence has been seen as a family issue and little interest has been directed at violence in same-sex relationships.

Domestic violence is a pattern of abusive behaviour that transgresses the right of citizens to be free from violence. When one partner in a relationship harms the other to obtain or maintain power and control over them, regardless of whether they are married or unmarried, living together or apart, that is domestic violence. The ‘harm’ can take a variety of forms, whether it be from verbal abuse like shouting, emotional abuse like manipulation, control and/or humiliation, physical abuse like hitting and/or punching, and/or sexual abuse like rape and/or inappropriate touching of either the woman or her children.

The majority of adult victims are women. The victims and survivors are not more likely to belong to any particular racial, cultural or language groups. The majority of perpetrators are male and usually live with the victim at the time of the abuse. There is an important association between the propensity to domestic violence and drug and alcohol use.

What can you do if you are abused?

Domestic violence is regulated by the Domestic Violence Act 116 of 1998. The Act was introduced in 1998 with the purpose of affording women protection from domestic violence by creating obligations on law enforcement bodies, such as the South African Police Services, to protect victims as far as possible. The Act attempts to provide victims of domestic violence with an accessible legal instrument with which to prevent further abuses taking place within their domestic relationships. The Act recognises that domestic violence is a serious crime against our society, and extends the definition of domestic violence to include not only married women and their children, but also unmarried women who are involved in relationships or living with their partners, people in same-sex relationships, mothers and their sons, and other people who share a living space.

A protection order, also called a restraining order or domestic violence interdict is a court order which tells an abuser to stop the abuse and sets certain conditions preventing the abuser from harassing or abusing you again. It may also help ensure that the abuser continue to pay rent or a bond or interim maintenance.  The protection order may also prevent the person from getting help from any other person to commit such acts. Victims may also file a criminal charge in addition to obtaining a protection order and get a court order to have the perpetrator’s gun removed, if applicable. Other remedies may also be available, depending on the exact nature of the abuse.

A restraining order can be applied for at your local magistrate’s court.

Important Numbers:

Women Abuse Helpline:  0800 150 150

Childline:    0800 055 555

SAPS Crime Stop:   08600 10111

Bertus Preller

Family Law Attorney

Twitter: @bertuspreller

Email: bertus@divorceattorney.co.za

Tel:  021 422 1323

Source: http://voices.news24.com/bertus-preller/2012/11/abuse-and-domestic-violence-south-africa/ 

Domestic Violence in South Africa


The Domestic Violence Act 116 of 1998 was introduced with the aim of affording women protection from domestic violence by creating obligations on law enforcement bodies to protect women (victims) as far as is possible.

The Act sets is quite broad in its scope of what behaviours will constitute domestic violence, these are physical, sexual, verbal, emotional and psychological abuse, stalking, intimidation, harassment, malicious damage to property, unauthorized access to the complainant’s property, as well as other forms of controlling behaviour which may cause harm to the safety, health or well being of the complainant. The Act also extends the notion of a ‘domestic relationship’, affording protection to married couples; same-sex relationships; couples who are (or were) in a dating, engagement or customary relationship, including an actual or perceived relationship; any person in an intimate relationship; parents of a child; and people who do or have recently shared a residence.

It is extremely difficult to obtain reliable statistics on domestic violence against  in South Africa as many cases go unreported. The incidence domestic violence is even harder to measure because the police do not keep separate statistics on assault cases perpetrated by spouses or partners.

The Department of Justice in South Africa estimates that 1 out of every four South African women are survivors of domestic violence. According to certain figures 1 in every 6 women who die in Gauteng are killed by an intimate partner.

In a research project by the Institute of Security Studies  in 1999 it was found that:

  • 90% of the women interviewed had experienced emotional abuse: being humiliated in front of others was most commonly reported.
  • 90% had also experienced physical abuse: being pushed or shoved and being slapped or hit were highlighted.
  • 71% had experienced sexual abuse: attempts to kiss or touch followed by forced sexual intercourse occurred most often.
  • 58% experienced economic abuse: money taken without consent was most common.
  • 42.5% of women had experienced all forms of abuse.
  • 60% of all cases of abuse were committed by partners, lovers or spouses.

The reality however is that it is not only women who are abused by men, but very often women who in return abuse men. Men are increasingly becoming silent victims of domestic abuse and violence at the hands of their partners. No matter who commits Domestic Violence, it remains a hideous and despicable crime.

The flip side of the coin is that there has also been a 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 vengeful, women to punish or blackmail their ex-partners or, more often, as a nasty way to gain leverage in a divorce action or child care (custody) dispute. Statistically women and children are overwhelmingly the victims of domestic violence.

In a recent study on patterns of domestic violence, Glasgow University found that of the 200 women surveyed, 60 percent said “it was acceptable for women to hit their husbands” while 35 percent admitted assaulting their partners and a total of 8 percent admitted to physically injuring them.

The weakness in the Domestic Violence system is in essence a failure in the administration of justice. Very often the police charged with processing these charges, have so little interest in them that they either turn a blind eye on the victim or they simply rubber stamp any statement that is handed in  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. Some magistrates in turn routinely endorse the applications by issuing “interim” protection orders and a man wrongfully restrained must come to court on the return date and have the order set aside. Never mind the reputational damage a man 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 the man gets his day in court and have access to his children.

In the case of Omar v Goverment of the Republic of South Africa and Others BCLR 253 CC it was stated that it is crucially important for lawyers as officers of the court with a responsibility to uphold the Constitution and the law not to exploit or manipulate the Domestic Violence Act to gain a tactical advantage in divorce litigation and custody battles. The wide definition of “domestic violence” in the Act makes it easy for a malicious and vindictive complainant to cause an innocent respondent to be arrested and renders exploitation or manipulation of the Act by attorneys to gain an unfair advantage over their opponents.

In the case of B v B 2008 (4) SA 535 W the court confirmed that the High Court has the power as upper guardian of all minor children, to annul an interim protection order granted in a magistrate’s court, in terms of the Act where it is in the best interests of the children. In this matter the custodian parent was using the interim protection order to deny the other parent access to the children in terms of a nother court order. The court found that it was never the intention of the legislature when enacting the Domestic Violence Act to remove these inherent common law powers of the High Court.

A restraining order, once granted, can have the effect to deny someone his/her rights in terms of section 18 of Act 38 of 2005 (the Children’s Act), by denying such a person parental responsibilities and rights in respect of caring, maintaining contact and acting as guardian of the minor children. Nowhere in the Domestic Violence Act is the words “access” or “custody” defined. The point is that one cannot seek an order relating to custody and access through the Act, as the Magistrate’s Court is not competent to grant such relief.

Domestic Violence cause migraines


During the last decade, there was an increased interest in the possible link between Domestic Violence and migraines.

Domestic Violence is a pattern of abusive behaviours by one or both partners in a relationship. Domestic violence is a serious and preventable public health problem that affects thousands of South Africans.

In the February 2011 issue of the journal Headache, a magazine in the USA researchers studied a group of young women with migraine in Lima, Peru. Among those women, 47% had been victims of some sort of physical or sexual violence by their spouse or intimate partner, compared with 36% of young women without migraine. After adjusting for other potentially confounding factors, this study found that having been the victim of abuse increased your risk for having migraine by over 40%. If abused women also experienced symptoms of depression, they had over double the risk of having migraine.

What does this study tell us:

  • Nearly 2 of 5 women in this study had been abused by an intimate partner.
  • Having been abused makes it more likely that you will experience migraines.
  • Having been abused and having problems with depression more than doubles your risk of having migraines.

People who were maltreated as children, physically, emotionally, or both also have a higher prevalence of migraine, researchers say. Gretchen E. Tietjen, MD, of the University of Toledo in Ohio, and colleagues reported in three studies in the January issue of Headache: Journal of Head and Face Pain.

“Childhood maltreatment, in particular emotional abuse, is a risk factor for chronic migraine,” the researchers wrote, and the associations between maltreatment and pain “were independent of depression and anxiety, both of which are highly prevalent in this population.”

There is accumulating evidence that childhood maltreatment may lead to a host of chronic conditions and the researchers conducted a cross-sectional survey of headache clinic patients with diagnosed migraine from 11 outpatient centers.

They assessed childhood maltreatment via the Childhood Trauma Questionnaire and took a history of comorbid pain conditions including irritable bowel syndrome, chronic fatigue syndrome, fibromyalgia, interstitial cystitis, and arthritis.

The researchers also assessed depression and anxiety.

A total of 1,348 patients completed the surveys: 88% were women, with a mean age of 41.

In the first of the three studies, the researchers confirmed that childhood maltreatment was prevalent in migraineurs.

The prevalence among abuse types was as follows:

  • Physical abuse: 21%
  • Sexual abuse: 25%
  • Emotional abuse: 38%
  • Physical neglect: 22%
  • Emotional neglect: 38%

In terms of our law a protection order can be obtained at any Magistrates Court, you can get an interim protection order quite quickly by filling in certain forms, and that interim order will specify a date at which the final order will be considered (a return date). Once a final order is made, it is permanent and can only be changed by applying to the courts.

The kinds of protection you can get in a protection order include conditions that:

  • Your abuser must not commit any act of domestic abuse.
  • Your abuser must pay you rent, mortgage payments or other emergency money.
  • The police must seize any firearms or dangerous weapons in your abuser’s possession.
  • The police must go with you and help you to collect your personal property.
  • Your address must not be given anywhere on the protection order

About the author:

Bertus Preller is a Divorce 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 and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. 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.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Abusing a restraining order


Trivial pursuit

Noseweek – Issue #143, 1st September 2011

When mild-mannered Bishops old boy Colin Chaplin told his friends that  the surprise domestic-violence order the police had served on him at work was obtained by a woman he’d threatened to unfriend on Facebook, many found it hard to believe – there had to be a more serious reason.

Bewildered Colin Chaplin

Even more bewildering to the 36-year-old Chaplin is that the purported victim – a woman with whom he’d “shared a kiss or two” in the space of a week, years ago – said she’d been advised to seek the order by his ex-girlfriend, well-known Cape Town attorney Lauren Fine.

The spurned friend is fashion designer Danielle Vermaas, who uses the professional name of Danielle Margaux. Two years after his flirtation with Vermaas, Chaplin hooked up with Fine. Their six-month relationship ended amicably, he thought, in July last year.

“I just want you to know that I have done a search on you and I’m very anxious because you and my ex-girlfriend have several Facebook friends in common.”

The ease with which strangers can connect through mutual friends on Facebook – and the painful consequences for Colin Chaplin – are what prompt his anxious first words when he meets with Noseweek at a restaurant in Newlands, Cape Town.

Although lawyer-talk first alerted Noseweek to the story, it took some sleuthing to identify Chaplin, and then numerous emails through an intermediary, to set up this meeting.

Noseweek had been tipped off that two of Chaplin’s exes – Lauren Fine, a one-time ballerina and now a partner in a top Cape Town law firm, and Danielle Vermaas, a local designer who goes by the name of Danielle Margaux – had purportedly teamed up to have a Domestic Violence protection order slapped on him, on charges that were patently without substance.

A domestic violence order is no trivial thing but lawyers, policemen and even magistrates have all contributed to trivialising it. (See editorial in this issue).

Fine and her partners at well-known law firm Bernadt, Vukic, Potash and Getz have since been briefed about the facts of the case, but have refused to meet the victim of the outrage.

Chaplin finally agreed to see Noseweek as a last resort in a system that has failed him. “I’ve exhausted every avenue to clear my name,” he says.

After matriculating at Bishops, Chaplin went to England where he obtained an LLB (Hons) from the University of Buckingham. Back in Cape Town, he has for some years been working in the property development industry.

His story:
“Several years ago I met a girl called Danielle Vermaas at a dinner party. We became friends and kissed once or twice, but nothing serious happened between us. It was a very brief fling. I did not take it seriously from a romantic point of view. Quite simply, she is not my sort of woman.

Designer Danielle Vermaas

“After that and during early 2009, we remained friends. She’d sometimes visit me at my parents’ home and became very fond of my mother.”

Might Vermaas have been under the impression they were in an exclusive relationship? “No. It was just a fun friendship,” Chaplin stresses.

During the first half of 2009, Vermaas started “getting weird”, says Chaplin: sending him numerous emails, phoning regularly, and constantly sending Facebook messages.

“[As a fashion designer], she would make me clothes, invite me to functions, cook food and show up at my flat with it, unannounced. I always turned her down.

“In a nutshell, she was in love with me. I kept saying, I’m not interested. Basically, I was just trying to say f-off.”

Towards the middle of 2009, Chaplin says he decided to start putting some “serious distance” between himself and Vermaas. He produces Facebook messages sent to him by Vermaas to demonstrate the point:

On 15 March 2009 at 11.07pm: Hi there! How are you? I am lying in my bed and thinking…I miss you and miss having you in my life and I would love to have you back in it…I do have a lot of issues, I know, and I suppose I am a difficult woman at times…In the same breath, I could have made the biggest tit out of myself now, because you might have met someone else…Deep down inside I hope you miss me as much as I miss you!…I don’t want you to feel that I am pressurising you…

On 21 April 2009: Hallo Col, you must think I am crazy…I just read the mail I sent you on Sunday and it was a bit intense…It feels like my life is falling apart ...

On 13 July, 2009: Col, I don’t understand why you don’t answer my emails. Have you thought about what I said? I really think we’d be great together.

Later that day Chaplin  replies:  Hi Danielle, I feel we keep going over this. I think you keep misreading my friendship. I like you as a person but am just not interested in going out with you. Please just accept this as you are making things awkward. Colin.

On 18 July, 2009, Vermaas writes: You are obviously very angry with me and have decided not to contact me at all. I, on the other hand, am not a person of a few words, as you very well know and have decided to mail you, because I know you won’t even pick up the phone if I try to call you. I should probably just let you be, but…I have gotten used to spending time with you… You always say I am needy. Perhaps, but it is because I feel like the outsider in your life, the one you keep at a distance…

You’re probably thinking I’m some sort of psycho chick and that I keep contacting you in all sorts of ways, but… I do mean well…Hope to hear from you soon, Danielle x.

Vermaas’s overtures continued, accelerating in November 2009 when Chaplin began a relationship with Fine. When he speaks about her, it’s easy to see that this was a woman who clearly meant something in Chaplin’s life. “We had our first date on 17 November. Lauren is beautiful and intelligent.”

About a week after this first date, Vermaas arrived at a bar where Chaplin was having a drink with friends, and tried to speak to him.

“She followed me home and insisted we talk. She asked me whether I was going out with Lauren Fine and then said she knew I was. She knew Lauren was Jewish and told me her father was Solomon Fine. I didn’t know what she was talking about. It turns out that Solomon Fine was Lauren’s grandfather. How Danielle came by this information, I don’t know. Danielle also made some derogatory remarks about Lauren being Jewish. It took quite an effort to get rid of Danielle that evening. I had to repeatedly ask her to leave.”

“She started crying, and told me she loved me, saying she was going to leave the country as there was nothing left for her here. She continued to slag off Lauren, using anti-Semitic comments.”

The next day, a somewhat freaked-out Chaplin removed Vermaas as a friend on Facebook.

On 30 November, Vermaas writes: Hey Col, I am sorry for the things I said about your new girlfriend the other night. I just think you need to know that this girl is not for you. This relationship will not last. She is a Jew and they will not accept you. They are not like us. Lauren Fine, sy klink soos ’n Jood. I am telling you this because you need to know. Danielle.

The next day Chaplin responds: You need to leave me alone and stop saying bad things about my girlfriend  – she has done nothing to you.

After their showdown in November, Vermaas slowed down contact with Chaplin for a while, but a month or two later, she started sending more emails and Facebook messages.

“The tone was friendly – she claimed she wanted to be friends. She sent me a Facebook friend request [again], which I accepted. During December 2009 and January 2010, she made contact again. I did not respond as I was really in love with Lauren and did not think much about Danielle. She contacted me a few times in 2010 It all seemed harmless.”

For example on 1 January 2010, at 4.28pm, Vermaas writes: Hi Colin, haven’t spoken to you in a while and I thought it well to wish you all the best of luck for 2010…and especially with you starting a new job on Monday…good luck! I know that you will make a great success of it….

Chaplin and Fine dated from November 2009 until the end of June 2010, when they split up. He stresses that it was an amicable parting: that she had wanted “space”.

“There were no bad feelings between us. Everything was cool. In fact, she susequently sometimes asked me for my help, which I gave her freely.”

When her mother was diagnosed with a serious illness a few weeks later, Colin was among the first she told, and he was there to support her.

But this is where it gets really weird, he relates.

“In early August 2010, a month-or-so after his relationship with Fine ended, Vermaas started “causing problems again” on Facebook. This included sending friendship requests to female friends on his site. “They would call me, asking who is Danielle Vermaas? Why does she want to be my friend? I sent her an SMS asking her to stop, or I would remove her as a friend from Facebook. I felt she was up to no good.”

It gets weirder, he says, because,  within a week, Fine suddenly blocked him on Facebook.

“I sent her an SMS asking why she had done this, but she did not respond.”

Chaplin suspected that, some time between 6 and 12 August, Vermaas used Facebook to establish that Chaplin and Fine were no longer dating, that she then contacted Fine with the intention of causing trouble and driving a final wedge between them. [He would be proved correct – but that only comes later – Ed].

“Whatever Danielle told her, Lauren did not check with me whether what she had been told was true. I was confused and hurt as I couldn’t think of anything I had done wrong to her.”

Chaplin, in the meantime, had maintained a friendship with Fine’s mother. “I would occasionally call on her –  always by prior appointment – to take some flowers or just for a chat. She is a Mills & Boon addict. I started writing a Mills & Boon-type romance and would take bits of the manuscript to her for proofing; really just to entertain her.”

On 27 September 2009 he arranged to visit Fine’s mother and took her some fluffy white slippers and some bath salts. He hadn’t visited in the previous three weeks, prompting her to ask whether he’d been away.

“She asked if it was true I’d been dating another girl at the same time I was dating Lauren. She named Danielle Vermaas. I denied it emphatically. I explained that I’d had issues with Danielle before and that I’d always loved Lauren.”

Now he knew for certain that Danielle had contacted Lauren.

And, within no time he also knew that Lauren had rushed to tell Danielle that he knew. Because, within an hour they’d spoken to each other.

Within an hour of his visit to Mrs Fine, Chaplin received a hostile message from Lauren Fine – the first communication he’d had from her since her birthday three weeks earlier: “It’s time to move on now and leave me and my family alone. Please don’t contact me and my family again!”


(Later that evening, Lauren Fine SMSed him again: “Hi Colin. I apologise for my earlier SMS. I am really not in a good space. I do, however, think it is best for you to move on.”)

Next day, it was Vermaas sending Chaplin and his mother an SMS, asking to meet. (She also got a friend to ring his mother with the same message.) All these messages were ignored. But that was hardly reason to anticipate the shock of what came next.

Three days later Chaplin got a call from the manageress at his office: the police had called, looking for him.

For an outstanding parking ticket?

No, much more serious. In fact, the office manageress told him, the police had warned her that he was to be considered dangerous. They wished to serve a restraining order on him in terms of the Domestic Violence Act.

Danielle Vermaas had filed for a protection order (a kinder title for the same thing) against him on the 28 September – the day after Mrs Fine had revealed to him that Vermaas had contacted her daughter and had claimed he’d been double-dating them.

“The day before she filed for the order against me, she wanted to meet me. It was the most bizarre thing. When she filed for the restraining order, she told the police that I was to be considered violent. She gave them my work number and my work address. The police then made several phone calls to my office.

“My head just spun.”

Chaplin runs through the haze of what ensued over the next few days. His employers said they were concerned about how clients would react to the information. “I didn’t make a big deal of it. I just quietly left. What was I going to do?

“I then had to present myself at the Cape Town Police Station with my parents to sign for receipt of the order.

“I looked at  Danielle’s statement and couldn’t believe my eyes. It was all bullshit. The reasons she gave for wanting the restraining order were that I was a dishonest person who did not pay tax to SARS. She then cited an SMS from two months earlier, in which I threatened to remove her as a friend on Facebook if she did not leave me alone.”

He continues: “It was insane. There was one other thing: at the bottom of the application, she said the reason she was filing was that she had been advised to do it by my ex-girlfriend, Lauren Fine. I can’t describe how I felt. It made no sense.

“So now I have no job, somebody has a restraining order against me for no reason, and I hear that my ex-girlfriend,  someone I’ve only ever been kind to, is involved.”

Danielle Vermaas’s application for a protection order – Noseweek has obtained a copy –  is too long to reproduce here. Some excerpts:

  • A few weeks ago he sent me a sms saying “stop this facebook crap with La. If I find anyone on her site tmrw who is not meant to be there my reaction will be extreme.” … on the 12th August 2010 one sms read (because I did not respond): “Call me in the next 5 mins or I am removing you permanently.”
  • I received a call from Lauren Fine…She is a lawyer…She suggested a restraining order.
  • I am an honest and trustworthy person who does not manipulate people. He is not an honest person as he does not pay taxes to SARS.
  • Please grant a restraining order, because he clearly despises me and I am scared.

Based on this affidavit, Magistrate Van der Spuy granted an interim protection order against Chaplin on 29 September. It reads, in part: “The respondent [Chaplin] is ordered not to commit the following acts of domestic violence: verbal, emotional, psychological abuse; not to harass, intimidate the applicant…not to communicate with the applicant at all, except through the courts or legal representatives”.

The order had been granted without notice and without Chaplin having been given a hearing – a fact that irks him about the nature of restraining orders and the ease with which they are granted. “It’s bizarre. The man is simply presumed guilty. It’s a case of ‘better safe than sorry’.”

Confused, but determined to get to the bottom of things, Chaplin contacted law firm Abrahams and Gross for advice. The attorneys took one look at the affidavit and told Chaplin he had a serious problem.

“They said there were no grounds for a restraining order, but that it was essential to get it dismissed as soon as possible. They said that Vermaas could try to deliberately manufacture a breach of the order which would mean I could be arrested and go to jail.

“My lawyers filed an opposing affidavit. It was quite simple – address each lie and show that the last contact you had with her was two months before she filed.”

Chaplin was able to provide tax records to show that, in fact, he had overpaid tax and had actually received a refund from SARS.

Chaplin’s answering affidavit is also in Noseweek’s possession.

Excerpts include: “The application is… ill-fated and amounts to a mockery of the true objectives of the Domestic Violence Act…Applicant and I 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.”

His answering affidavit details how Vermaas sent “friend” requests to Chaplin’s friends on Facebook, which prompted him to tell her, in August 2010, that he was “permanently removing” her as a friend on Facebook. He says, “It is astonishing to note how the Applicant is distorting the true facts by using the phrase to mean that I have committed some sort of Domestic Violence against her”.

A lawyer from Abrahams and Gross attended the magistrate’s court, where he served the opposing affidavit on Vermaas.

Chaplin’s attorneys said they wanted to move to a court date. That was when Vermaas said that she wanted none other than Lauren Fine to represent her. Chaplin’s attorney reported: “[This} will be a complete disaster simply because Ms Fine will be a witness in the matter and I can see no reason why Ms Fine will want to get involved. Ms Vermaas also indicated that her main concern was that our client [Chaplin] was badmouthing her in and around the Jewish community from which she obtained most of her work.”

The next court date was set down, for 3 November last year, which left Chaplin with the interim order hanging over him and the cost of yet another court appearance.

On the return date, Vermaas showed up with an attorney – not Fine – and changed her tune once again. “Now she was asking for a restraining order requiring me to stop stalking her.”

Chaplin laughs bitterly: “I don’t even know where she lives or works and hadn’t seen her in 11 months. She  just wanted me to be found guilty of something”.

Chaplin received the following confirmation from family law attorney Bertus Preller on November 3: “I wish to confirm that Ms Vermaas has withdrawn her application. Initially she wanted an apology and an agreement that you won’t stalk her in future, which we naturally refused and we demanded that the matter go to trial, however, her attorney backed off and withdrew the application.”

When the attorneys phoned him with the good news that the application had been withdrawn, Chaplin heaved a sigh of relief. “I thought, phew, it’s all gone away.”

Chaplin goes on: “So, the application is dismissed, she walks out. At this stage, one side of me is relieved, as the stalker girl is gone, but another part of me feels aggrieved. Firstly, I had incurred unnecessary legal costs – I had stopped counting at R20,000. Secondly, I was furious that an unsubstantiated order had been brought against me by ‘a woman scorned’ who lied to the court, and thirdly, I could not understand why Lauren Fine had become involved. I could not think of a single thing I had done against her. The only thing I was guilty of was doing good things for her and her family. In return, she branded me with the stigma of a domestic violence charge which never goes away. People just think that you go around beating up women.”

Two weeks ago, Chaplin asked a woman out. “She had heard this story that I threaten women. Cape Town is a small place.”

He can’t imagine having a normal life and a normal relationship. “To be honest, women scare the shit out of me at the moment. I have no plans to date any women for the foreseeable future.”

Asked for comment on how on earth Chaplin had an interim protection order slapped against him on the basis of that application, Magistrate Van der Spuy referred Noseweek to Linda Unuvar, Judicial Head of the Family Court in Cape Town. While reluctant to comment on an individual case, Unuvar said:

“This is an affidavit. [In Danielle Vermaas’s case, it appears to have been an unsigned statement. – Ed.] If  a person takes an oath and says I have been threatened, and claims that someone is calling her at all hours and upsetting her emotionally, that is harassment. If she says under oath that any act of domestic violence is committed, the court must grant an interim protection order. That includes harrassment, intimidation, unwanted calling or SMSing. Even if such harassment is the only complaint, it still warrants an order.”

Unuvar said that once the order is served on the respondent, “the respondent can come to court and say, ‘this was served on me and it is not true, I want to bring the return date forward within 24 hours’. We give him the earliest available date. If it is urgent, we will hear it”.

Unuvar said there would have been nothing stopping someone in Chaplin’s position from asking for a counter order against his accuser and saying that in fact, he was the one being emotionally abused. “He would have had that right. He should have anticipated the hearing and asked the court for a protection order against her. We would have had a hearing within a few days.”

Unuvar stressed that protection orders are not granted if the court is not satisfied that some form of domestic violence has been committed. “If an interim order is granted, and, on the return date, the court is not satisfied, it will not confirm the order.”

Abuse of the system is the exception, she added. “We are all trained and experienced magistrates, but we do not know whether somebody is lying under oath.”

Vermaas had this to say to Noseweek: “I have spoken to my lawyer and have decided not to comment. I am very busy and am not going to invest any time in this.”

And Lauren Fine? She agreed to meet a reporter from Noseweek at a coffee shop near her office, and arrived accompanied by her colleague, Mia Gibson. The answers she gave to Noseweek’s questions do not always tally with the documentary evidence that Noseweek has seen, and were aimed at generally discrediting Chaplin, while minimising the interaction she’d had with Vermaas and her role in the latter’s application for the protection order.

The closest Fine had got to giving Chaplin an explanation for her involvement in Vermaas’s application came in a letter she wrote to his mother shortly after the order was granted. Some extracts:

“I am sure you can understand the tension it caused when he would visit my mother and she would not tell me that he’d visited. I would hear from Trayer (my mother’s domestic worker) that he had visited and what had been said. I did not make a big deal out of this as I didn’t want to upset my mother and I assumed Colin was visiting with only good intentions.

“On 28 September I phoned home only to be told by Trayer that Colin was there again and talking to my mother about me. This upset me, as my mother had mentioned the day before that having visitors was very tiring. …When I came home … my mother confirmed … that Colin had made certain derogatory remarks about Danielle, which I do not believe to be true.

“Since I had been advised by Danielle that Colin had threatened her in the past – and I now knew he was aware that she and I had made contact… I did telephone Danielle, and I told her that if Colin were to threaten her with any further legal action, she should contact me to discuss it.

“Danielle advised me that she was scared Colin would harm her and she was thinking of taking out a restraining order… I advised her (as I would with anyone) that if she genuinely felt threatened… then she should get a restraining order. She asked me to assist her and I told her that she should ask the police…

“I am certain that the contents of this email…will be upsetting to you. I have not forgotten the beautiful things that Colin has done for my family and me, but I have had equally numerous unpleasant experiences involving Colin…

“Wishing you and Colin only the best. Lauren.”

Now, she told Noseweek that he was “weird”, that friends had told her he was an alcoholic (she confirmed that he had never consumed alcohol or smoked in her presence throughout their relationship in deference to her wishes, but now believed this to be a sign that he was “obsessive”); she said he was a “stalker” since friends had told her they had seen him “lurking” near her office and she believed she had seen him “lurking” downstairs from her Sea Point apartment; that he kept visiting her mother “day and night” just to irritate her [Lauren]; that she had shown his “Mills and Boon” manuscript to a psychologist and a psychiatrist she knew and they had both described it as “abnormal, verging on psychotic”. [She sent us a copy, which I read in lurid anticipation, only to find it pretty harmless, even good, as Mills and Boon novels go. My diagnosis: that psychologist and psychiatrist must be “verging on the psychotic” – Ed.]

But, she emphasised, what really upset her were Chaplin’s “endless” lies. [i.e. don’t believe anything he tells you? – Ed.]

Did she herself have any reason to believe he might be violent? “Yes.” Why? “When he got angry, he would just get up and leave.”

Later Fine would add to the list that a “good friend” had recently told her Chaplin had plans to abduct her.

Chaplin’s retort: “What am I supposed to do with her, once I’ve abducted her? It is becoming increasingly clear that in order to justify what she did last year, she has attacked my character by spreading rumours and lies about me. I have now been accused by Lauren of being a liar, capable of irrational behaviour, an alcoholic, a cheating bastard and most recently an abductor. The last is just ludicrous.”

And what about Danielle Vermaas? Noseweek asks Fine.

“She contacted me on Facebook and we arranged to meet. We compared notes and worked out that Colin had been cross-dating us. She told me Colin had sent her a “weird” sms threatening that if she did not leave me alone, I [Lauren] was going to bring court applications against her. [Vermaas has not produced any evidence to support this allegation. – Ed.]

“I told her, if he threatens you like that, rather phone and ask me what the true position is.”

Fine explained her involvement in Vermaas’s protection order. “Danielle called me on my cell phone when I was in the car rushing to Rondebosch to attend the HPCSA hearing of Sylvia Ireland’s former psychiatrist, Dr Berrard. She told me that Colin had threatened her – I wasn’t interested how – and that she was really frightened. She asked if she could get a restraining order. I said yes, if you’re scared. She asked if I could help her, but I said no, I don’t practise criminal law and I don’t want to get involved. I wouldn’t know where to start. I suggested she go to the police. It’s the advice I would have given to anyone.”

That was it? All on the spur of the moment?

“That was it.”

Surely the evidence suggests Vermaas had been “stalking” Chaplin, rather than the other way around? “Yes, they’re both weird. I want nothing more to do with either of them.”

Hold that thought for a moment. Because this is when the local version of WikiLeaks – an anonymous website hacker of sorts – steps in to really stir things up. Immediately after the restraining order was served on him, Chaplin spent many evenings at his favourite pub mulling over the mysteries of the case with his friends. Somebody obviously knew somebody, because three months after the event, says Chaplin, a parcel of web printouts appeared in his postbox. They were of Facebook messages that Vermaas had sent to various friends in a plot to cause trouble between Chaplin and Fine.

It transpires Chaplin was right in suspecting that something fishy was up early in August 2010. The printouts show that on 5 August she sent a note to her friend Rasheda Samuels: “I see you are friends with Miss Fine whahahahaha” and she asks Rasheda: “so tell me – are they still a married couple ?????”.

On 9 August she writes to her friend Gustav Louw who has also befriended Fine on Facebook: “My fuck Gustav, I see you are friends with Lauren Fine!!!! This calls for an evening of champagne and snooping on her Facebook site!!!!”

The proposed evening of champagne and snooping appears to have paid off. Next day she was writing to Fine:

“I would normally not email someone I don’t know, but I had a very strange email from your boyfriend Colin tonight. He seems upset about mutual people we know on Facebook and implies that I have got something to do with this… [Chaplin found she was approaching Facebook friends he had in common with Fine and told her to lay off, or he’d unfriend her. – Ed.]

“What you do, your relationship and friends have nothing to do with me. I have no issues with you being his girlfriend now.

“I suppose this is as strange for you as it is for me. Good luck! Danielle.”

Every line was a lie, but Lauren took the bait.

Fine’s reply: “Dear Danielle, Colin is not my boyfriend and has not been for a while. Whilst we were together he did tell me that you wanted him back but I never commented. I would like to meet for a coffee. There is much I would like to discuss.”

Danielle’s happy reply: “I should also like to meet up with you for a chat. I am rather shocked now, but we can discuss everything when we meet.

Lauren’s reply: “Cool, Friday after work.”

That weekend Fine “unfriended” Chaplin on Facebook.

Also amongst the “hacker’s” printouts is the anxious message sent by Fine to Vermaas on 27 September: “Need to chat urgently.”

Two hours later Vermaas writes: “Thanks for calling me…I would like to discuss with you sometime what the procedure is with regards to getting a restraining order. I think it would be better if I get it, before he does something…I had a bad feeling ever since I met him. Let me know when you will be available to discuss the restraining order, as I am very serious about it. Perhaps it would be in your best interests to get one too!”

Fine’s reply: “I have no idea how to get a restraining order, but will find out. Let’s do coffee.”

So, not quite the rushed conversation while driving, then.

Fine told Noseweek that Chaplin had given lawyer Mia Gordon copies of several of these illicitly obtained Facebook printouts. But, she said, she was not at liberty to show them to us as they were the subject of a police investigation. The police, she added ominously, believe they know the address from which the Facebook interloper operated.

Matters get stranger still: between February and May this year, Fine’s Facebook friends started receiving abusive messages about her, all emanating from Vermaas’s Facebook address. A sample: “How’s your stupid Jewish friend now. She’s a loser.”

She addressed a lawyer’s letter to Vermaas demanding that she immediately stop sending these messages and threatening court action.

Vermaas’s lawyers responded by saying that someone had pirated Vermaas’s Facebook site and that her friends, too, had been receiving abusive messages. And that she had already reported the matter to the police.

So who’s up to no good now? And who’s trying to mislead whom?

Copyright © 2011 www.noseweek.co.za

Bertus Preller is a Divorce Attorney in Cape Town and has more than 21 years experience in most sectors of the law and 14 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. 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, Sunday Tribune and Business Times as well as magazines such as Noseweek, You and Huisgenoot. 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 father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Domestic Violence


Domestic Violence

It happens frequently that one parent of a child would abuse the provisions of the Domestic Violence Act to block the contact that the other parent have towards their child. This was an issue that was dealt with in the case of Narodien v Andrews 2002 (3) SA 500 (C).

The matter came before the Court for review at the request of one of the magistrates of the Cape Town magistrate’s court. The applicant and respondent were the biological parents of a boy, L, aged five, born out of wedlock. The applicant father had applied to the magistrate’s court in terms of the Domestic Violence Act 116 of 1998 (the Act) for an interim protection order against the respondent mother. The affidavit accompanying the application had, however, contained no details of any ‘acts of domestic violence’ committed by the respondent. The parties were embroiled in a dispute concerning the applicant’s access to his son. The respondent had allegedly agreed on various occasions to allow the applicant to see the child but would not allow the child to spend an entire weekend with his father. The applicant wanted L to spend every second weekend with him from Friday 6 pm to Sunday 6 pm. The relief applied for by the applicant in the magistrate’s court was that he be granted ‘access to his son’ as stipulated.

The magistrate hearing the matter had issued an ‘interim protection order’ against the respondent. The order did not mention any acts of domestic violence but simply ordered the respondent not to prevent the applicant from having contact with his son. On the return date of the ‘interim protection order’ the respondent opposed the issuing of a ‘final protection order’. It appeared from the evidence that the respondent was unwilling to allow the child to remain with his father for an entire weekend because this would mean that he would miss out on the Sunday morning church service to which his mother habitually took him and, further, that the respondent would be unable to limit the opportunities which the child had to interact with the applicant’s family. The magistrate hearing the matter, however, confirmed the ‘interim protection order’, ordering the respondent to allow the applicant access to his son from Friday 7 pm to Sunday 4 pm every alternate weekend.

The respondent subsequently applied for the setting aside of the ‘protection order’. The magistrate hearing that application varied the previous order made by granting the applicant access to the child from 7 pm Friday to 7 pm Saturday and from 11 am Sunday to 5 pm Sunday every alternate weekend until such time as access could be determined by the High Court. The applicant had been present at court but, due to a misunderstanding, was not in court when the matter was heard. The ‘variation order’ was accordingly granted in his absence. The magistrate subsequently requested the High Court to set aside the ‘variation order’ on the grounds that the order had been incorrectly granted in the absence of one of the parties. Following upon queries by the Court as to the legitimacy of the ‘protection order’, the magistrate referring the matter for review stated that the definition of ‘domestic violence’ in the Act included any controlling or abusive behaviour towards the complainant where such conduct harmed or could cause imminent harm to the safety, health and well-being of the complainant and that the conduct complained of by the applicant in the instant matter had fallen within this definition. The magistrate stated further that the court had been satisfied that undue emotional hardship would be suffered by the applicant if a protection order were not issued immediately.

The court found that the High Court in its capacity as upper guardian of all minor children within its area of jurisdiction, however, had an inherent common-law jurisdiction mero motu to review the so-called ‘protection orders’ granted by the magistrate’s court in the instant matter, as such orders directly concerned the interests of a minor child within its area of jurisdiction.

While the concept of ‘domestic violence’ was defined very broadly in s 1 of the Act, such definition had to be placed within the context of the Act as a whole and not be viewed in isolation.

An interpretation of s 7(6) of the Act which would empower a magistrate’s court to make ‘stand-alone’ orders concerning access to a minor child in cases where the parents were embroiled in a dispute about access amounted to a radical departure from the relevant common-law principles and statutory provisions relating to child welfare and statutory interpretation. Such interpretation of s 7(6) of the Act could even mean, theoretically, that the magistrate’s court would have territorial jurisdiction to make orders concerning access where the High Court would have no such jurisdiction. This construction offended against the tenet of statutory interpretation that, as far as possible, statutes had to be interpreted so as not to give rise to absurd, anomalous or unreasonable results.

The mischief which s 7(6) of the Act had been meant to address was a lack of an express provision in other family violence legislation for the courts granting family violence interdicts to make ancillary orders relating to contact with minor children, so ensuring that children at risk were protected from domestic violence and that the protection of the adult applicant was not compromised by arrangements relating to contact between the respondent and any children living with the applicant. This purpose was a far cry from an interpretation of s 7(6) which would empower the magistrate’s court to make a ‘protection order’ under the Act which consisted solely of an order granting access to a minor child or regulating the exercise of such access. Orders concerning access made in terms of s 7(6) had to be ancillary to a ‘protection order’ of the kind envisaged in s 7(1) of the Act. A stand alone order as to access could not legitimately be regarded as falling within the powers vested in the magistrate’s court by s 7(1) (h).

As such it should be noted that a Domestic Violence order may be taken on review to the High Court if there are grounds to do so. To use the provisions of the Domestic Violence Act simply as a measure to block the contact of the other parent is wrong and may therefore be set aside.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za

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