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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)

Understanding the process of obtaining a protection order in South Africa is crucial for your security and well-being.

This comprehensive guide outlines the necessary steps, legal requirements, and documentation needed to apply for a protection order, ensuring you’re fully equipped to take action against domestic violence.

Start your journey towards safety by familiarising yourself with the essential information on securing a protection order.

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

What is Domestic Violence or Domestic Abuse?

Domestic Violence or Domestic Abuse takes on various forms, and the act of domestic violence may be committed in a variety of domestic relationships.

Recognising these behaviors is a fundamental part of the process to ‘How To Obtain a Protection Order’ against an abuser.

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.

How to obtain a Protection Order?

Follow this Step-by-Step Guide: How To Obtain a Protection Order.

As the ‘complainant’, you must make a sworn statement known as an affidavit and complete an application form at your nearest Police Station or Magistrate’s Court. You need to describe the type of abuse you have endured and why your application is urgent. This can be done by explaining why you may suffer without this relief. 

Protection order applications do not have to be made exclusively by the complainant in a matter but may be brought forward by any other person who may have an interest in the case.

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.

You will also be required to submit the particulars of the person on whose behalf you are applying for a protection order.

Supplying these details will be beneficial to you as it assists the Court and the police in carrying out the process.

If you are able and these facilities are accessible to you before you apply, then also bring with you, photographs, sworn affidavits by witnesses and doctor’s letters.

How To Obtain a Protection Order (Explained)

Your affidavit may be accompanied by supporting affidavits of people who are aware of the matter. The documents must be delivered to the Clerk of the nearest Magistrate’s Court and the application will, as soon as reasonably possible, be 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.

If the Court is not convinced that you have grounds for an interim order, the Court will issue a Notice to Show Cause.

This Order Must Be Served on The Respondent for It to Have Force and Effect.

Interim Protection 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.

This should be no sooner than the return date when the complainant and respondent are to scheduled to appear before the Court. There, the respondent may inform the Court why they feel that the protection order should not be made final.

If the respondent fails to appear in Court, yet sufficient notice has been given by said Court; and if the Court becomes satisfied that there is sufficient evidence to grant the Final Protection Order, it will have 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 specific 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.

Domestic Violence or Domestic Abuse takes on various forms, and the act of domestic violence may be committed in a variety of domestic relationships.

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? 

Understanding ‘What is a Protection Order?’ is a key step in ‘How To Obtain a Protection Order’.

A Protection Order is a legal document issued by a Magistrate to prevent further acts of domestic violence. This order is crucial in the journey to ensure your safety and is enforceable throughout South Africa.

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?

When is it appropriate to apply for a Protection Order? This question is essential in the process of ‘How To Obtain a Protection Order’.

A Complainant should consider applying for one if they perceive a risk of domestic violence from the Respondent.

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.

  • This includes 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.
  • The repeated making of telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues.
  • Also, the repeated 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 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.

 

Man in Jail for Domestic Abuse

Domestic Violence Statistics in South Africa

In South Africa, some alarming statistics emerge when one investigates 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.

If an abuser does 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 situation to them.

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

Domestic Abuser in handcuffs regrets the crime. Arrested man with handcuffs.

There are generally three circumstances in which the police will have to arrest the abuser. These include the circumstance wherein:

  • Very little time has passed between when you reported the incident and when the incident 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.

If your abuser contravenes the conditions of the protection order, you must immediately report it to the police.

In circumstances wherein the police fail to arrest the abuser, they must provide them a notice to appear in Court for the contravention of the protection order.

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

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’.

An arrest warrant terminates when it is destroyed, lost, or used to have the abuser arrested when they are in contravention of your protection order. (A new warrant can be obtained). 

Each time your warrant terminates, you will have to revert to the Court to make an affidavit wherein 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 is 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 seeks to curb the occurrence of violence and more specifically, domestic and gender-based violence.

Section 12 of the Constitution provides everyone has 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 asserted the Protection from Harassment Act which sets out the meaning of sexual harassment that consists of unwelcome sexual attention from a person who is aware, or ought reasonably to be aware, that such attention is unwelcome, amongst other details.

How to Set Aside a Protection Order

Protection orders can be used on several different occasions for a number of years without being terminated.

The order mayonly be stopped when you, as the Respondent and person the order is in favour of, go 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 can apply to the Court that the order is 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 abused legislation in South Africa, and many Parties abuse these orders to facilitate certain outcomes – mostly in divorce matters.

By following these steps, you will understand ‘How To Obtain a Protection Order’ effectively.

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

Domestic Violence and Abuse Forms

Form 1: Notice to the complainant in a case of domestic violence [J471] 

Form 2: Application for Protection Order [J480]  

Read More:

Application for Protection Orders under the Domestic Violence Act (SCA Decision)

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