A Protection Order is a Court Order issued by a Magistrate wherein a perpetrator of domestic violence or harassment is ordered not to commit similar acts of domestic violence or harassment against a Complainant in the future.
Once granted, a Protection Order is valid and applicable throughout the whole of South Africa, regardless of which court granted it.
In South Africa, Protection Orders serve as vital legal instruments designed to shield individuals from various forms of abuse and harassment. These orders are primarily governed by two pieces of legislation:
The Domestic Violence Act, No. 116 of 1998, and the Protection from Harassment Act, No. 17 of 2011.
Both acts aim to prevent further harm by legally compelling alleged offenders to cease specific harmful behaviours.
Defining Protection Orders and Interdicts
A protection order is a specialized form of interdict – a court order that either prohibits a person from performing certain acts or mandates them to undertake specific actions.
In the context of South African law:
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Domestic Violence Protection Order:
Issued under the Domestic Violence Act, this type of order addresses various forms of domestic abuse, including physical, sexual, emotional, verbal, psychological, and economic abuse. It also covers intimidation, harassment, stalking, damage to property, and unauthorized entry into the complainant’s residence. The act further specifies that such conduct must harm or pose an imminent threat to the complainant’s safety, health, or well-being.
The Domestic Violence Act is applied where a past or present domestic relationship exists between the Parties. This extends to roommates with a shared common residence.
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Harassment Protection Order:
Governed by the Protection from Harassment Act, this type of order pertains to harassment, which includes behaviours such as following, watching, pursuing, or accosting the complainant or related persons near their residence, workplace, or educational institution. It also encompasses unwanted communications and sexual harassment.
Harassment is defined as conduct that causes harm or instils a reasonable belief that harm will occur.
It is important to distinguish South Africa’s Protection Orders from the “restraining orders” commonly referenced in U.S. media. While restraining orders often mandate that an offender maintains a specific distance from the complainant, South African protection orders may not include such distance stipulations. Instead, they can prohibit the offender from entering certain locations, such as the complainant’s residence or workplace, and from engaging in specific types of behaviour.
Criteria for Protection Orders
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Domestic Violence Protection Order:
If you are in an intimate or family relationship experiencing domestic violence, it is crucial to consider applying for a Domestic Protection Order. Domestic violence can manifest in physical, sexual, emotional, or economic forms, and if you feel unsafe or threatened in any way, seeking legal protection is essential.
Examples of circumstances that may warrant applying for a Domestic Protection Order include physical assault, sexual abuse, emotional manipulation, controlling behaviour, or financial exploitation within a domestic relationship. A single incident of domestic violence is potentially sufficient to warrant a Protection Order being granted.
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Harassment Protection Order:
Harassment Orders are suitable when facing persistent unwanted behaviour that causes distress or fear, but the relationship with the perpetrator may not necessarily be domestic or intimate. This behaviour can include stalking, cyberbullying, unwanted communications, or harassment that affects your well-being and safety.
It is important to note that harassment can occur online and offline, and seeking a Harassment Order can provide legal protection to prevent further harm and restore a sense of security.
Procedure for Obtaining a Protection Order
The process for securing a protection order involves several key steps:
1. Application Submission:
The complainant must approach the nearest Magistrate’s Court to file an application. This includes completing the relevant form and submitting an affidavit detailing the abusive or harassing incidents, including dates and descriptions of each occurrence, and attaching any evidence of the offending behaviour. It is crucial for complainants to document all incidents of abuse or harassment thoroughly, noting dates, times, and locations, to provide compelling evidence to the court.
2. Police Report:
It’s advisable to report the incident to the local police station. While applying for a protection order doesn’t equate to filing criminal charges, registering a criminal case can support the application and provide additional legal avenues for protection.
3. Interim Protection Order:
Upon reviewing the application, the court may issue an interim Protection Order. This order provides immediate relief and is served on the respondent, specifying a return date for a full hearing.
4. Service of the Order:
The interim order must be personally served on the respondent, either by the Sheriff of the court or a police official. The order becomes effective only upon such service.
5. Court Hearing:
On the return date, a hearing is held where both the complainant and respondent can present their cases. The court will decide whether to issue a final Protection Order.
6. Final Protection Order:
If granted, this order remains in effect indefinitely unless the complainant requests its cancellation or the court decides to set it aside. Breach of a Protection Order is a criminal offence and can result in arrest, fines, or imprisonment.
Legal Implications and Enforcement
Violating the conditions of a Protection Order is a serious offence in South Africa. Consequences for the respondent can include arrest without a warrant, fines, or imprisonment for up to five years.
Conclusion
Protection Orders are essential legal tools in South Africa, offering a means to prevent further abuse and harassment. Understanding the types of Protection Orders, the eligibility criteria, and the application process is vital for those seeking protection. Given the complexities involved, it’s advisable to consult with legal professionals who can provide guidance tailored to individual circumstances, ensuring that victims of abuse and harassment can navigate the legal system effectively to secure their safety and well-being.
For personalized advice tailored to your needs, consult an attorney at SchoemanLaw.
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