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Domestic Violence in South Africa & Method to Obtain a Protection Order

Domestic violenceWhat is the purpose of a protection order?

  • A protection order is a court order that prevents a person, the offender in the situation, from committing certain acts of domestic violence in a domestic relationship as defined in the domestic violence act 116 of 1998.
  • An interim protection order is temporarily issued by the court, usually on the same day when an application is made, where there is a probable chance of domestic violence or further acts of domestic violence being committed, before the final protection order is issued upon a return date.
  • The order contains terms and conditions that must be complied with, which will be specified by the party applying for the protection order for example, a spouse may be ordered to avoid contacting the applicant via sms, telephone call or email, abusing the applicant verbally or physically or otherwise not to enter the applicant’s place of residence or employment.

How to apply for a Protection Order in terms of Act 116 of 1998?

  • The complainant must complete a form 2 application in terms of Section 4(1) of act 116 of 1998 and complete an affidavit with the relevant annexures in support of the application, preferably with the assistance of an attorney to ensure clarity and correctness of the complainant’s version of events.
  • Supporting affidavits and/or any annexures by the applicant or persons who have knowledge of the matter in question, may accompany the application.
  • The supporting affidavit and/or annexures must be handed to the clerk of the court who has jurisdiction over the matter. The clerk of the domestic violence court will then consider the application immediately.
  • The application for a protection order is not limited to the complainant. An application for a protection order may be brought on behalf of the complainant by any other person who has an interest in the well-being of the complainant. This includes a counsellor, a health service provider, a social worker, a teacher or a member of the SAPS.
  • If the court is satisfied that there is sufficient evidence that the offender (respondent) is committing or has committed an act of domestic violence/harassment, and that unnecessary hardship may be suffered by the complainant as a result of the act, the court will issue an interim protection order against the respondent.
  • The purpose of this interim protection order is to provide immediate protection to the complainant.
  • The interim protection order has no force or effect until it has been served on the respondent by a member of the SAPS or the sheriff of the court.
  • The court is also required to issue a suspended warrant of arrest for the respondent. A breach of the protection order requires that the respondent must be arrested by the police immediately. 

What to do if an interim protection order is received?

  • The Offender who is served with the order:
    • must carefully read the order and take note of the return date on the order;
    • may, if the Court date is unreasonably distant, apply to Court to anticipate the court date;
    • must keep a record of events and documents relevant to the order. Every issue mentioned in the protection order should be addressed in an affidavit by the respondent (offender). An original and two copies of this affidavit together with annexures must be taken to Court on the return date.
  • The offender may request the assistance of an attorney to represent him or her in the matter.
  • The protection order must be obeyed by the offender to prevent a warrant of arrest being executed.

What Happens upon the Return date as indicated on the Interim Order?

  • Upon the return date, the Magistrate of the relevant court will allow the parties to put their version of events to the court - every issue mentioned by the Complainant in the interim protection order must be addressed by the Offender.
  • The Offender must explain to the Court why the interim protection order should not be made final. Witnesses may be called to testify about incident/s that may, or may not, have happened, or hand over documents in support of an explanation.
  • The Magistrate will decide whether or not to grant a final protection order. If the Magistrate decides to grant the final protection order, a copy of the order will be served on the Offender immediately if he or she is at court, alternatively by the SAPS or sheriff.
  • The Complainant will also receive a copy of the final protection order and a suspended warrant of arrest for the Offender’s arrest, in the event that the offender contravenes the final order.
  • A copy of the order together with a suspended warrant of arrest will also be sent to the Police Station of the Complainant's choice.

What will happen if an Offender fails to go to Court on the return date?

  • If an interim protection order is served on the Offender and there is proof to the effect that he/she committed an act of domestic violence, a final protection order will be issued in the Offender’s absence.

What will happen if the Offender does not comply with the protection order?

  • The Offender will be arrested for purportedly committing an offence alternatively a notice will be served on the Offender indicating when and where he/she should appear in Court on the charge of committing an offence.
  • If convicted, the sentence is a fine and/or imprisonment for a period not exceeding 5 (five) years.

Can a protection order be cancelled or changed?

  • Yes - written notice of the application by the applicant (complainant) must be given to the Court and the other party.
  • The Court will grant the application if the Court is satisfied that there is a good and valid reason to cancel or change the order; and the application was made freely and voluntary without any undue influence or duress.

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