Domestic Violence may include physical, sexual, emotional, verbal and psychological abuse, stalking, intimidation, entry into the victim’s house without consent, damage to property or any other abusive behaviour.
If you or someone you know are experiencing any form of domestic violence, you have the option to obtain a protection order. This aims to prevent the reoccurrence of domestic violence or sexual harassment by stating what conduct the alleged offender must refrain from doing. Here’s how:
Step 1: Determine the Type of Protection Order Needed
There are two main types of protection orders in South Africa: Protection from Harassment Orders and Domestic Violence Protection Orders. Determine which type of order is appropriate for your situation.
- Protection from Harassment Order: This type of order is suitable if you are being harassed or threatened by someone who is not a family member or in a domestic relationship with you.
- Domestic Violence Protection Order: If you are in a domestic relationship (e.g., spouse, partner, family member) and are a victim of domestic violence, this type of order is more appropriate.
Step 2: Gather Necessary Information and Documentation
Collect all relevant information and documentation that can support your case. This can include:
- Personal identification (ID or passport)
- Any evidence of harassment, abuse, or threats. That could be
– text messages/ emails
– photographs or videos of the physical abuse
– witness statements
– confirmation letters (Form J88) of the fact that you have been abused (letters can be written by doctors, social workers, etc.)
- Contact information of the person you are seeking protection from
Step 3: Complete the Necessary Forms at Your Nearest Magistrate’s Court
Go to your nearest Magistrate’s Court to apply for a protection order. You don’t need an attorney for this process, but you can seek legal advice if you have concerns. If you have a friend or family member you trust, please take them along.
Ask the court staff for the appropriate forms to apply for a protection order. They will provide you with the required documents and guide you in completing them.
Fill out the application forms accurately and truthfully. Include all the relevant information and details about the harassment, abuse, or threats you have experienced and the name of the police station where you are likely to report any breach of the order. Attach any evidence or documents that support your case.
You may be required to swear an affidavit, which is a written statement that you sign in front of a commissioner of oaths. Return the completed forms and the affidavit to the court clerk. They will submit the application to a magistrate.
Step 4: Receive the Magistrate’s Decision
On the day of the hearing, both parties must appear before the Magistrate Court. The magistrate will then make a decision that can be either:
- Dismiss your application if there is no evidence that domestic violence is taking place. This is why you must present as much evidence as possible when reporting abuse.
- Grant an interim (temporary) protection order in your favour. In cases where the complainant urgently requires protection, for instance, if their life is at risk, the magistrate is obligated to issue an interim protection order. This interim protection order is provisional and must be served to the respondent. It directs the respondent to attend a court hearing on a designated future date, referred to as the return date. The complainant is also required to be present in court on the return date. During the hearing on the return date, the court will conduct a proceeding where the respondent is expected to justify why the interim protection order should not be converted into a permanent order.
- Postpone the matter without granting an interim protection order and provide a date during which the application for a protection order will be reviewed. Throughout this hearing, the court will evaluate all aspects of the case, including the details of the (domestic) violence incident and any supporting evidence, before reaching a final decision.
If the respondent does not appear in court on the day of the hearing, the protection order will be made final. In South Africa, a final protection order remains in effect indefinitely unless it is annulled or revoked by a court.
Step 5: Serve the Protection Order
When a final protection order is issued, the court clerk is responsible for distributing certified copies of the protection order to the relevant police station, the complainant, and the respondent.
Remember, the interim protection order only works once handed over to the respondent. Once it’s served, you can have the abuser arrested if they don’t follow it. Breaking any rules in the order can lead to a fine, jail time, or both.
When the court gives you the interim protection order, it gives you a warrant of arrest against the respondent. This warrant is put on hold as long as they follow the rules and do what they should do according to the interim protection order.
What Happens If the Perpetrator Violates the Protection Order?
If the perpetrator violates the Protection Order, the complainant must report this immediately to the police. After that, the police can make an arrest, and the perpetrator can be charged for violating the protection order. If the perpetrator is found guilty, the court can issue a fine or sentence for imprisonment.
Keep Copies and Follow the Order
Keep copies of the protection order with you at all times and follow the conditions outlined in the order. If the other party violates the order, report it to the police immediately.
Who Can Apply For A Protection Order?
If there is a case of domestic violence, the complainant is eligible to seek a protection order. If the complainant is a minor, they have the right to independently apply for a protection order without requiring parental or guardian assistance. It is also possible for another individual to apply for a protection order on behalf of the complainant. This implies that anyone concerned with the complainant’s welfare and safety can apply on their behalf. However, if the complainant is above the age of 18, their written consent is mandatory for someone else to apply on their behalf.
If you need any support or advice regarding Protection Orders, please contact:
021 447 9762 or via WhatsApp: 083 222 5164
021 761 7585 or via email firstname.lastname@example.org
- Forms to fill out
- Legal Framework
- Heinrich Böll Foundation / MOSAIC: A simple guide to understanding Domestic Violence rights, responsibilities and referral pathways