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How to obtain a Protection Order (Explained)

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How to obtain a Protection Order (Explained)

How To Obtain a Protection Order (Explained)

Domestic Violence in South Africa is regulated by the Domestic Violence act 118 of 1998

Domestic Violence or Domestic Abuse takes on various forms and the act of domestic violence may be committed in a variety of domestic relationships. The forms of Domestic Violence may include physical abuse, sexual abuse, emotional, verbal and psychological abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s house without consent, where the parties do not share the same residence, or any other controlling of abusive behaviour towards the complainant.

Domestic violence includes any form of harm perpetrated against a complainant that can cause imminent harm to the safety, health or wellbeing of the Complainant.

There are two types of orders available to people that are abused, namely a Protection Order and a Harassment Order.
What is a Protection Order?

A Protection Order is a Court Order, issued by a Magistrate, wherein the perpetrator of the domestic violence is ordered not to commit acts of domestic violence (abuse) against the Complainant. This order is valid and applicable throughout the whole of South Africa, regardless of which court grants it to you.

When can a Complainant apply for a Protection Order?

The Complainant may approach the Court if they feel that the Respondent committed or may commit an act of domestic violence.

How to obtain a Protection Order?

As the ‘complainant’ you will have to make a sworn statement known as an affidavit and complete an application form at your nearest police station. Protection order applications do not have to be made by the complainant in a matter exclusively but may be brought forward by any other person who may have an interest in the matter. This may include a social worker, a counsellor, a teacher, a health service provider or a member of the police service.

You will need to have your full details such as your name, ID number, address, phone number and address for your place of work. The details of the person you are applying for a protection order should you have them would also be beneficial to you as it assists the court and the police in carrying out the process.

You should be able to explain the kind of abuse you have endured and be able to say why your application is urgent, this can be done by explaining why you may suffer without this relief.

If you are able and these facilities are accessible to you before you apply, then photographs, sworn affidavits by witnesses and doctor’s letters should be brought along as well.

Your affidavit may be accompanied by supporting affidavits by people who are aware of the matter. The documents must then be delivered to the clerk of the nearest court and the application will be as soon as reasonably possible considered by the court.

The court being satisfied that there is sufficient evidence that the suspect has indeed committed or is committing said acts of domestic violence, the court will issue an interim protection order in favour of the complainant against the respondent.

This order must be served on the respondent for it to have force and effect.

Interim orders are intended to bring immediate relief and protection to the complainant on a temporary basis until a final order from the court is issued which will be no sooner than the return date when the complainant and respondent are to appear before the court where the respondent may make representations as to why the protection order should not be finalised.

The respondent not appearing in court, with the court being satisfied that there is sufficient evidence to grant the final protection order and sufficient notice has been given to the respondent, has the effect that the court may grant the final protection order on the return date.

Domestic Violence Court

The Domestic Violence Act refers to “the court” and in doing so it points towards any Magistrate’s Court for a district. There will be a ‘domestic violence’ section found in the magistrate’s court. You can ask to be directed to the domestic violence clerk’s office where you can be assisted.

Forms of domestic violence

According to the Domestic Violence Act, domestic violence means:

Physical abuse (meaning any act or threatened act of physical violence towards a complainant);

Sexual abuse (meaning any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant);

Emotional, verbal and psychological abuse (meaning a pattern of degrading or humiliating conduct towards a complainant possibly through repeated insults, ridicule, name calling, threats or exhibition of obsessive possessiveness or jealousy that seriously invades the complainant’s privacy, liberty, integrity or security);

Economic abuse (this firstly includes the unreasonable deprivation of economic resources to which a complainant is entitled under law or requires by necessity which may possibly include household necessities for the complainant, mortgage bond repayments or payment of rent in respect of shared residence.

Secondly this definition also includes the unreasonable disposal of household effects or other property in which the complainant has an interest);

Intimidation (meaning uttering or conveying a threat, or causing a complainant to receive a threat, which induces fear);

Harassment (meaning engaging in a pattern of conduct that induces the fear of harm to a complainant including – repeatedly watching or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be; repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues; and repeatedly sending, delivering or causing the delivery of letters, telegrams, packages; facsimiles, electronic mail or other objects to the complainant);

Stalking (meaning repeatedly following, pursuing or accosting the complainant);

Damage to property (meaning the wilful damaging or destruction of property belonging to a complainant or in which the complainant has a vested interest);

Entry into the complainant’s residence without consent, where the parties do not share the same residence;

Any other controlling or abusive behaviour towards a complainant

Domestic Violence and Gender-based Violence

Gender-based violence (GBV) is a term that broadly encompasses the violence that comes about due to the disparities found within power relationships along the line of gender within a specific society.

Most of the different forms of violence found in a society, for the sake of this article focusing on domestic violence, fall under the umbrella definition of GBV as often times these acts of violence upon investigation are gendered in nature.

Interpersonal acts of violence are most often perpetrated by men against women and children.

Intimate partner violence (IPV) is the most prevalent form of GBV and is perpetrated by an intimate partner or spouse (this includes those that may be former intimate partners as well) and it does occur within same-sex relationships as well as heterosexual ones.

Domestic Violence Groups and Organisations

JOKO has provided a page that contains a list of organisations along with their descriptions that look to end the scourge of domestic and gender-based violence in South Africa.

Domestic Violence Statistics in South Africa

In South Africa there are some very alarming statistics that emerge when one looks into domestic violence. As a country, seven women are killed daily and 40-50% of men have admitted that they have been perpetrators of physical partner violence.

According to StatsSA, almost 50% of the assaults were committed by someone close such as a friend (22%), an intimate partner or spouse (15%), a household member or relative (13%) in 2018/19.

Women who are separated or divorced found themselves more likely than their currently married, never married, and widowed counterparts to have ever experienced physical (40%) or sexual violence (16%) in 2016.

Possible jail time in terms of a Protection Order.

Should an abuser do anything that goes against or ‘contravenes’ the protection order that is in place then it is advisable that you immediately go to the police station or contact the police by phone and report the the situation to them.

The police will have you make an affidavit in which you will be asked to explain when and how the contravention occurred.

There are generally three circumstances in which the police will have to arrest the abuser and those include the circumstance where not a lot of time has passed between when you reported the incident and when the incident actually occurred, when the police reasonably believe that the abuser is going to continue abusing you which may lead to serious harm being caused and when the police believe that the contravention was of a serious nature.

The above is not to say that if you feel unsafe but not in a situation that fits any of the mentioned circumstances, there is nothing you or the police can do about it.

Your abuser contravening the protection order should always be quickly reported and if the police do not arrest them then they must provide them a notice to appear in court for the contravention of the protection order.

The police are also in possession of a ‘suspended’ warrant of arrest for your abuser upon granting of a final protection order.

This warrant is kept in case your abuser contravenes the protection order and the police reasonably believe one of the three above mentioned circumstances apply to you.

Take note however that it will be your personal responsibility to return to the court for another warrant should the one issued ‘terminate’.

Termination of an arrest warrant takes place when it is either destroyed, lost, or used to have the abuser arrested when they are in contravention of your protection order.

Every time your warrant terminates you will have to revert to the court to make an affidavit where you explain that your previous warrant has terminated, and you request a new one to protect yourself.

The contravention of a protection order is a crime which carries a maximum prison sentence of 5 years, the imposition of a fine, or both. This proceeding would be heard in a criminal court in front of a magistrate.

Domestic Violence Laws in South Africa

South Africa has in place other pieces of legislation, aside from the Domestic Violence Act, that seek to curb the occurrence of violence and more specifically domestic and gender-based violence.

Section 12 of the Constitution provides everyone the right to freedom and security along with the right to bodily and psychological integrity.

It is enshrined in Section 28 of the Constitution that every child has the right to be protected from maltreatment, neglect, abuse, degradation or exploitative labour practices and to be protected during times of armed conflict.

The legislature has also promulgated the Protection from Harassment Act which sets out the meaning of sexual harassment which consists of unwelcome sexual attention from a person who is aware or ought reasonably to be aware that such attention is unwelcome, amongst other points.

How to Set Aside a protection Order

Protection orders can be used on several different occasions for several years without being terminated. The order will only be stopped when you as the complainant and person the order is in favour of, goes to court and cancels or withdraws it.

The court also has the power to set the protection order aside. The respondent or person against whom a domestic violence order was granted is able to apply to the court that the order be set aside but this cannot happen until the court is satisfied that you have been notified to come to court where the application to set the order aside will be heard.

You can have peace of mind that your abuser will not be able to tamper or interfere with your order without you knowing about it.

If you would like to amend or change the terms of the order, then an application to the clerk of the domestic violence office at the magistrate’s court can be made. This amendment may include things such as a change in residence or premises of employment.

Domestic Violence Orders are possibly the most abuse legislation is South Africa, and many Parties abuse these orders to facilitate certain outcomes – mostly in divorce matters.

If you need assistance with a Domestic Violence Application or with a Rescission of a Domestic Violence Application, contact us.  We will explain your rights and obligations to you in a clear way.

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