A protection order aims at preventing the reoccurrence of domestic violence by stating what conduct an alleged offender must refrain from doing in future. This order requires that a respondent complies with the protection order provisions as set out in the interim and/or final protection order. If the respondent contravenes any stipulation of the protection order, he/she may be arrested. Once a protection order is granted, it is enforceable throughout the country.
The Domestic Violence Act 116 of 1998 (the Act) provides for the obtaining of protection orders by victims of domestic violence. Applying for a protection order is a civil process and before one can obtain a protection order, certain requirements must be met.
Firstly, the applicant (victim) must show that he or she is in a domestic relationship with the respondent.
Secondly, once it has been established that a domestic relationship does exist between the parties, the applicant has to show that an act of domestic violence has occurred. The concepts ‘domestic relationship’ and ‘domestic violence’ as defined in section 1 of the Act, are defined in broad terms.
The procedure to apply for a protection order is as follows:
- A complainant can approach a police station or a court of law to apply for a protection order. There is an express duty on police officers to assist victims of domestic violence (section 2), by referring them to a court responsible for protection orders, which usually forms part of the family courts section, as well as to inform them of their right to institute criminal proceedings. This duty was stressed by the court inKhanyile v Minister of Safety and Security and Another 2012 (2) SACR 238 (KZD) at paras 38 and 39.
- The complainant must make an affidavit and complete an application form.
- Supporting affidavits by persons who have knowledge of the matter in question, may accompany the application.
- These documents must be handed to the clerk of the nearest court. The court will consider the application.
- The application for a protection order is not limited to the complainant. It 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.
- Section 5 of the Act provides that the court may issue an interim protection order if it is satisfied that the respondent is, or has committed an act of domestic violence and undue hardship may result on the applicant, if an order is not issued. The decision to issue an interim protection order is at the discretion of the court. The purpose of this interim protection order is to provide immediate protection to the complainant.
- It is important to note that the interim protection order has no force or effect until it has been served on the respondent. For purpose of service it is important that the applicant has the respondent’s particulars, however, this is not a necessity, as the papers are usually served by the police with the assistance of the applicant.
- 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 may be arrested by the police immediately.
- The interim protection order is not a final order from the court, but a temporary order which grants immediate relief until the return date (the date on which the applicant and the respondent, after being given due notice, are to appear before court to have the protection order made a final order).
- On the return date the applicant will start by stating his or her case to the court. The respondent will respond by stating his or her side of the case. The standard of proof is on a balance of probabilities.
- If the respondent does not appear in court on the return date, but the court is satisfied that proper notice has been given to the respondent and that there is sufficient evidence that the respondent has committed, or is committing an act of domestic violence, the court may make a final order on the return date.
- Should both parties not attend the proceedings on the return date, the order will not be confirmed.
The protection order will prevent the respondent from –
- committing any specified act of domestic violence;
- entering the joint residence or entering a specific part of the residence;
- entering the victim’s residence if they are not living together;
- entering the victim’s place of employment/office; and
- having contact with a child or children, if it is in the best interest of the child.
If a protection order has been obtained, the respondent cannot prevent the victim or a child who usually lives at the shared residence, from entering or remaining in the shared residence or any part of it.
When applying for a protection order, the complainant may request for the removal of the respondent’s firearm or other dangerous weapon. If the Magistrate orders the police to remove the firearm, the police will keep the firearm until the case has been finalized. The firearm can only be returned to the respondent by order of the court, and the court may add conditions. The court may also order the State to keep the firearm if it is in the best interest of the victim’s safety.
Should you require any assistance with obtaining a protection order, we at Reyneke Attorneys are here to assist.
Call us on +27 (0)72 197 8499 or send us an query.