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Protection Orders in South Africa: Your Constitutional Right to Safety

In South Africa, our right to be safe and free is enshrined in the Constitution A protection order plays a very important role in safeguarding those rights and the safety of individuals who find themselves in abusive or threatening situations. These legal instruments offer a way for victims to seek legal protection from their abusers and ensure their safety and well-being.

In this article, we will discuss the details of Protection Orders in South Africa, by exploring what they are, how to obtain them, and the responsibilities associated with them.

What Is a Protection Order

 A protection order is an order granted by a court that orders an abuser to stop the abuse, it also sets certain conditions preventing the abuser from harassing or abusing the victim again. A protection order can also be applied for as a means to prevent an abuser from getting help from any other person to commit abusive acts.

The judicial system encompasses two types of Protection Orders. The first type is the Domestic Violence Protection Order which is provided for in the  Domestic Violence Act 116 of 1998  and the Domestic Violence Amendment Bill 14 of 2022. A Domestic Violence Protection Order can be granted by a court against a person (Respondent) with whom the victim (Complainant) had or has a domestic relationship. Read more about domestic violence here.

The second type is the Harassment Protection Order which is provided for in the Protection from Harassment Act 17 of 2011. A Harassment Protection Order is granted against a person (Respondent) with whom the victim (Complainant) is not in a domestic relationship and who doesn’t share a common residence. This order will be granted with the aim of stopping the harassment or abuse.

There are usually no costs involved in applying for a protection order unless the Complainant wishes to make use of legal representation.

Once a protection order is granted, it is valid until the Complainant withdraws it. If the Respondent lodges an appeal, the order will continue to operate until it is cancelled by the appeal court.

Who Can Apply for a Protection Order?

Any person who is/was subjected to domestic violence or harassment may apply for a Protection Order. In such an application the victim is called the Complainant and the abuser the Respondent.

If the victim is a child, he/she can apply for a protection order on his/her own and does not have to be assisted by a parent or a guardian.

It is also possible for a person to make an application for a protection order on behalf of the victim. This means that any person who has an interest in the well-being and safety of the victim can make an application. It should however be mentioned that if the victim is older than 18 years, the written consent of the victim is required to make an application on his/her behalf.

An interim protection order will be granted and will then be served to the Respondent. The interim order specifies the date on which the final order will be considered. Only once the final order is made, it will be permanent and can only be changed by applying to the courts.

Obtaining a Protection Order

If a Complainant wishes to apply for a Protection Order, they may do so at the court on any day of the week, but for after-hour applications, it has to be done at a police station. However, it is important to remember that not all courts work the same way and some may only handle protection order applications on certain days, and at certain times.

It should be mentioned that a Magistrate’s Court or High Court is a domestic violence court with the power to grant Protection Orders. A Complainant has to go to the court in the area where they live or in which the respondent lives or where the abuse took place. A court also has the power to grant an interim protection order.

An application for a Protection Order will be made by way of an affidavit which will include:

  • the facts on which the application is based;
  • the nature of the order; and
  • the name of the police station where the victim will report any breach of the order.

Once at the court, the following steps will be taken:

  1. An application form will be completed for a protection order, together with this an affidavit will also be written out about the abuse.
  2. A sworn statement will then be made to the clerk that what has been written is true and the Complainant will then need to sign the application form.
  3. The clerk signs and stamps the application form and opens a file.
  4. The clerk will then hand the file to the magistrate who will read through the application.

The magistrate can decide to:

  • dismiss the application if there is no evidence that domestic violence or harassment is taking place;
  • grant an interim (temporary) protection order in the Complainant’s favour, to be finalised on a date provided by the court where the Respondent will have a chance to give his/her side of the story; or
  • postpone the matter without granting an interim protection order and provide a date when the Respondent will get a chance to give his/her side of the story.

In terms of the Domestic Violence Amendment Bill 14 of 2022, a Complainant may apply to the court for a protection order by lodging the application with the clerk of the court or electronically. This means that the Act now also allows for secure online submissions of applications for protection orders. Read more about the new Domestic Violence Bill here.

Serving the Interim Protection Order on the Respondent

If the court has granted an interim Protection Order, the following will happen:

  1. The clerk will notify the Complainant of the return date and give them a case number.
  2. The magistrate will issue a notice to appear in court and the Respondent will need to be informed that an application for an interim protection order was granted and that he/she must appear on the return date to give his/her side of the story.
  3. The clerk files the original application and interim protection order forms into the court file and hands the Complainant three copies. Two of the copies are for the sheriff or the police, depending on who will serve the interim protection order on the respondent. The clerk will also give the Complainant a return of service form to take to the police or sheriff.
  4. The Complainant then needs to get the police or sheriff to serve the interim protection order. Please note that when the police serve the order it is done at no charge, however, when the sheriff serves the order they do charge a fee.
  5. The police or sheriff will then serve a copy of the interim protection order on the Respondent. It is crucial that the Respondent is informed personally of the application and return date.
  6. The police or sheriff then fills in the return of service form and returns it to the court when the interim protection order has been served on the respondent.

If the Respondent wishes to oppose the application, he/she will have an opportunity to file and serve an answering affidavit upon the Complainant and the Court. If the Respondent decides not to oppose the Application, no further action is needed. 

An interim protection order will not have any force until it is served on the Respondent. Once the interim protection order is granted and served on the Respondent, the Complainant will be able to have the Respondent arrested if he/she disobeys it.

Granting a Final Protection Order

If the Respondent appears in court on the day of the hearing, the court will hear evidence from the Complainant, the Respondent and any other possible witnesses. The court will then consider the evidence before it in order to make a decision.

If the Respondent does not appear in court on the day of the hearing, the protection order will be made final.

What happens if the Respondent violates the conditions of the Final Protection Order?

If the Respondent violates the conditions of the Protection Order, the Complainant has to go to the police station and open a criminal case. The Complainant will need to file an affidavit which sets out the manner and dates of the abuse. The Respondent will then be criminally charged with contempt of court.

It should be mentioned that the above will apply even if the violation is not an actual crime, such as controlling behaviour. If the violation itself involves a crime, such as assault, then the Respondent can be charged with both contempt of court and assault.

Contact Us

It takes immense courage to face each day when living in an abusive situation, and you have already shown incredible strength just by enduring this hardship. But know that there is a way out, and there is a path towards healing and freedom. Reach out for help when you are ready, whether it’s to friends, family, or support organizations that can offer guidance and resources.

If you or someone you know needs any assistance or guidance with an Application for a Protection Order, please contact us.

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