Protection Orders - Domestic Violence

What is Domestic Violence?

Domestic violence is a serious issue that affects many individuals and families.

Understanding the legal avenues available for protection can be crucial for those in need.

This guide will walk you through the key aspects of domestic violence and protection orders in South Africa.

Domestic violence is still one of the most common human rights abuses found in South Africa.

The Domestic Violence Act recognises that domestic violence is a serious social evil in our society. 

In South Africa, a protection order is a particular kind of injunction that is made possible by two Acts: the Protection from Harassment Act, 17 of 2011, and the Domestic Violence Act, 116 of 1998.

An interdict is a particular kind of court order that either forbids someone from acting or compels them to act.

Generally, a protection order would forbid the offender from carrying out any of the acts specified in the relevant Acts.

Find the Domestic Violence Act here.

It is important to note that the Domestic Violence Act is where the conduct harms or may cause imminent harm to the safety, health, or wellbeing of the complaint.

Domestic violence refers to a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner.

This can include:

1. Physical Abuse
2. Examples: Hitting, slapping, punching, kicking, choking, and using objects to harm.
3. Impact: Physical injuries, chronic health issues, and long-term psychological trauma.
4. Emotional Abuse
5. Examples: Insults, threats, intimidation, manipulation, and humiliation.
6. Impact: Low self-esteem, depression, anxiety, and a feeling of helplessness.
7. Sexual Abuse
8. Examples: Rape, forced sexual acts, unwelcome touching, and any non-consensual sexual activity.
9. Impact: Physical injuries, sexually transmitted infections, and psychological trauma.
10. Financial Abuse
11. Examples: Controlling finances, withholding money, denying access to financial resources, and preventing the victim from working.
12. Impact: Financial dependency, inability to leave abusive relationships, and economic hardship.
13. Verbal Abuse
14. Examples: Name-calling, yelling, constant criticism, and demeaning language.
15. Impact: Emotional distress, reduced self-worth, and ongoing mental health issues.
16. Stalking and Harassment
17. Examples: Following, constant messaging or calls, showing up uninvited at places, and monitoring movements.
18. Impact: Fear, anxiety, and restriction of freedom and privacy.

Who Can Apply for a Protection Order?

In South Africa, the Domestic Violence Act allows the following individuals to apply for a protection order:

1. Spouses
2. Married or in a long-term relationship, including customary marriages.
3. Partners
4. Individuals in a dating or intimate relationship.
5. Family Members
6. Including children, siblings, parents, and extended family members living in the same household.
7. Cohabitants
8. Individuals who live together in a domestic setting, regardless of sexual orientation.

How to Apply for a Protection Order

Step-by-Step Process:

1. Visit the Magistrate’s Court
2. Action: Go to the nearest Magistrate’s Court that handles domestic violence cases.
3. Description: The court will provide the necessary forms and guidance on the process.
4. Complete Forms
5. Action: Fill out Form 2 - Application for Protection Order.
6. Description: This form requires details about the abuse, the parties involved, and the type of protection sought.
7. Submit Evidence
8. Action: Provide any supporting evidence.
9. Description: Evidence may include medical reports, photographs, witness statements, and any other relevant documentation.
10. Affidavit
11. Action: Write and submit an affidavit.
12. Description: The affidavit should detail the incidents of abuse and the reasons for seeking protection.

What the Affidavit for a Protection Order Must Include

When you seek protection from harassment or abuse, obtaining a protection order can be a crucial step.

A vital component of this process is the affidavit that accompanies the application.

This document serves as a written statement, sworn under oath, detailing the reasons you need protection.

Understanding what to include in this affidavit is essential for ensuring your request is clear, comprehensive, and compelling.

Key Elements to Include in an Affidavit for a Protection Order

1. Personal Information
2. Your Full Name and Contact Details: Provide your complete name, address, and contact information. If you are concerned about your safety, you may request that your address be kept confidential.
3. Details of the Respondent: Include the full name and any known contact details of the person from whom you are seeking protection.
4. Relationship to the Respondent
5. Nature of the Relationship: Clearly describe your relationship to the respondent (e.g., spouse, partner, family member, acquaintance). This context helps the court understand the dynamics of the relationship.
6. Description of Incidents
7. Specific Incidents of Abuse or Harassment: Detail each incident of abuse or harassment, including dates, times, locations, and a clear description of what occurred. Be as specific as possible to give the court a vivid understanding of the threats or harm you have faced.
8. Include these specifics if the respondent has made any threats, whether verbal, written, or implied. Mention any physical evidence (photos, messages, emails) or witness statements that support your claims.
9. Impact on You
10. Emotional and Physical Impact: Explain how the respondent’s behaviour has affected your emotional and physical well-being. This might include symptoms of anxiety, depression, physical injuries, or any other relevant impact.
11. Fear for Safety: Clearly state why you believe you are in immediate danger. This might include past behaviour patterns of the respondent or any recent escalation in their actions.
12. Previous Legal Actions
13. Any Prior Protection Orders or Legal Actions: Mention if there have been any previous protection orders or other legal actions taken against the respondent. Provide details on the outcomes of those actions.
14. Request for Specific Protections
15. Specific Protections Requested: Clearly state what specific protections you are seeking from the court. This might include no-contact orders, exclusion from certain locations, or temporary custody of children.
16. Sworn Statement
17. Oath and Signature: Your affidavit must include a statement that you swear (or affirm) that the information provided is true to the best of your knowledge. It must be signed in the presence of a notary public or other authorised official who can administer the oath.

Preparing a detailed and accurate affidavit is a crucial step in obtaining a protection order.

It provides the court with the necessary information to understand your situation and the urgency of your request.

By including all the relevant details, you can help ensure your application is as strong as possible.

After Submission of the Protection Order Application

1. Interim Protection Order
2. Action: The court may issue an interim protection order.
3. Description: If the court believes immediate protection is necessary, an interim order will be granted until a final decision is made.
4. Notice to Show Cause
5. Action: The respondent is served with a notice.
6. Description: The respondent must appear in court to explain why the order should not be made final.
7. Court Hearing
8. Action: Attend the court hearing.
9. Description: Both the complainant and the respondent will present their cases. The magistrate will then decide whether to issue a final protection order.

Enforcing the Protection Order

1. Serve the Order
2. Action: The police serve the order.
3. Description: The protection order is formally served to the respondent by the police.
4. Monitor Compliance
5. Action: Keep track of any breaches.
6. Description: The complainant should document any violations of the protection order.
7. Report Violations
8. Action: Report breaches to the police.
9. Description: Any violation of the protection order should be reported immediately for legal action.

What to Do If the Order Is Not Adhered To

1. Contact Police
2. Action: Report the violation.
3. Description: Inform the police about the breach of the protection order.
4. Warrant of Arrest
5. Action: Request a warrant of arrest.
6. Description: The court can issue a warrant of arrest for the respondent if the protection order is violated.

Contravention Of A Protection Order

A respondent will be in violation of the protection order if they carry out an action that is forbidden by the order, whether it is interim or final.

This will enable the complainant to seek the issuance of an arrest warrant by going to the court that issued the order. This means that in order to prove that the respondent has broken the order, the complainant must provide evidence under oath in the form of an affidavit.

When the complainant receives the arrest warrant, they should take it to the appropriate police station. There, an officer of the South African Police Service will execute the warrant, which entails making the respondent's arrest.

Following their arrest, the respondent must seek permission from the magistrate's court for their release on bail.

Since the warrant—also known as a bench warrant—was issued by a magistrate and only another magistrate has the authority to release the respondent on bail, one cannot get bail from the police station.

This is a very severe charge, and you should treat any protection order that is issued against you—final or not—with seriousness and abstain from any actions that are forbidden by the order.

Additionally, it is crucial that you abstain from any additional acts of harassment or domestic abuse that are not expressly covered by the protection order. This is because the complainant has the right to revisit the court to amend the protection order's terms and draw the magistrate's attention to any additional harassment or domestic abuse.

The penalties for receiving and breaking a protection order can drastically change your life. If found guilty of this crime, you will not only have a criminal record but also face fines or up to five years of straight imprisonment.

What the Protection Order Prevents

1. Contact
2. Action: Prohibit contact.
3. Description: The order prevents the respondent from contacting or coming near the complainant.
4. Abuse
5. Action: Stop further abuse.
6. Description: Any form of abuse, whether physical, emotional, or financial, is prohibited.
7. Access
8. Action: Restrict access.
9. Description: The respondent may be restricted from accessing certain places, like the complainant’s home or workplace.

Preventing Further Abuse

1. Stay Vigilant
2. Action: Be aware of threats.
3. Description: Remain alert and aware of any potential threats or violations.
4. Support Network
5. Action: Maintain support.
6. Description: Keep in touch with friends, family, or support groups who can offer assistance.
7. Legal Advice
8. Action: Seek legal help.
9. Description: Continuously seek legal advice and support to ensure protection and safety.

Necessary Documentation for Protection Order

1. Affidavit
2. Action: Write a detailed account.
3. Description: Provide a comprehensive description of the abuse incidents and reasons for seeking protection.
4. Evidence
5. Action: Submit supporting documents.
6. Description: Include any evidence such as medical reports, photos, and witness statements.

Forms of Abuse Under Domestic Violence Act

1. Physical Abuse
2. Action: Document injuries.
3. Description: Record any physical harm or injuries sustained.
4. Emotional and Psychological Abuse
5. Action: Record emotional impact.
6. Description: Document the emotional and psychological impact of the abuse.
7. Sexual Abuse
8. Action: Provide medical reports.
9. Description: Include any medical reports or evidence of sexual abuse.
10. Economic and Financial Abuse
11. Action: Detail financial control.
12. Description: Provide information on how financial control or abuse has been exercised.
13. Verbal Abuse
14. Action: Record incidents.
15. Description: Keep records of verbal abuse incidents.
16. Stalking and Harassment
17. Action: Gather evidence.
18. Description: Collect any evidence of stalking or harassment.

Interim Protection Order

An interim protection order provides immediate protection while waiting for a final order. It remains in effect until the court hearing.

Notice to Show Cause

This notice requires the respondent to appear in court and provide reasons why the protection order should not be made final. The notice to show cause is an opportunity for the respondent to defend themselves.

Serving and Filing a Protection Order

1. Service by Police: The police serve the protection order to the respondent, ensuring they are aware of the order and its conditions.
2. Court Filing: The order is filed and recorded at the court, making it a legal document that must be adhered to.

Final Protection Order

A final protection order is issued after a court hearing and remains in effect indefinitely unless varied or set aside by the court. It provides long-term protection and includes specific conditions to prevent further abuse.

Warrant of Arrest

A warrant of arrest can be issued if the respondent breaches the protection order, leading to immediate arrest. This serves as a deterrent and ensures compliance with the order.

Variation or Setting Aside of Protection Order

Either party can apply to the court to have the protection order varied (changed) or set aside (cancelled). The court will review the application and decide based on the circumstances.

Who Needs to Attend the Proceedings?

1. Complainant: The victim of domestic violence.
2. Respondent: The alleged abuser.
3. Witnesses: Any witnesses to the abuse, who can provide testimony or evidence.
4. Legal Representatives: Lawyers representing either party, if applicable.

Receiving the Protection Order

When a protection order is issued against you, you may be notified by the South African Police Service either through a phone call or by officers arriving unannounced at your place of residence or work.

Compliance with the Order

It is crucial to cooperate with the authorities and not resist the signing of the protection order. Failure to comply can lead to further legal consequences.

Residency Situation

If you and the complainant were living together, the protection order may require one of you to vacate the premises. Ensure to follow the guidelines stated in the protection order.

Legal Obligations

Review the protection order carefully to understand any restrictions or prohibitions. It is essential to avoid any actions that may violate the terms of the order.

Legal Consultation

Seek advice from a legal professional promptly to understand your rights, obligations, and the legal proceedings associated with the protection order.

Q&A Section

Q1: What should I do if I receive a protection order?

A1: It is crucial to comply with the order and seek legal advice to understand your rights and responsibilities.

Q2: Can I oppose a protection order?

A2: Yes, you can oppose a protection order by presenting your version of events in court either orally or through a written affidavit.

Q3: What happens if a final protection order is granted against me?

A3: If a final protection order is issued, it is important to abide by the terms of the order and refrain from any actions prohibited by it.

For more forms for Domestic Violence, please click here.

Read here for more information on protection orders and the SAPS.

Fee Protection Order Forms

1. Form 3 - Interim Protection Order (J62)
2. Affidavit for further warrant of arrest (J591E)
3. Application for variation or setting aside of protection order (J649E)

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