Protection Orders in South Africa

The purpose of this article is to provide a basic understanding and insight on protection orders in South Africa.

A protection order is a court order granted by a Magistrates’ Court prohibiting a perpetrator from engaging or attempting to engage in domestic violence or harassment.

A person can obtain a protection order in terms of the Domestic Violence Act 116 of 1998 and Regulations or in terms of the Protection from Harassment Act No.17 of 2011 and Regulations.

Protection Orders in terms of the Domestic Violence Act:

Domestic Violence is a major concern in South Africa. In 2021 the Statistics on Domestic Violence South Africa released a report stating that one in five women experience physical violence by a partner. The Domestic Violence Act 116 of 1998 recognises that domestic violence is a social evil and seeks to afford victims of domestic violence the maximum protection from domestic abuse. A complainant may apply for a protection order in terms of this Act when such person has been subject to domestic violence in a domestic relationship.

Domestic violence includes the following:

(a) Physical Abuse
(b) Sexual Abuse
(c) Emotional, verbal and psychological Abuse
(d) Economic Abuse
(e) Intimidation
(f) Harassment
(g) Stalking
(h) Damage to Property
(i) Entry into the complainant’s residence without consent, where the parties do not share the same residence; or
(j) any other controlling or abusive behaviour towards a complainant,

where such conduct harms, or may cause imminent harm to the safety, health or well-being of the complainant.

According to section 4(3) of the Domestic Violence Act 116 of 1998 the application can also be brought on behalf of the complainant by any other person who has a material interest in the wellbeing of the complainant such as a counsellor, health service provider, member of the SAPS, social worker or teacher.

Procedure to apply for a Protection Order in terms of the Domestic Violence Act No 116 of 1998

An interim protection order may be applied for at the nearest Magistrate District court. This order keeps the victim safe until the court date. The complainant must fill in Form 2 of the Domestic Violence Act 116 of 1998.The application can be accompanied by supporting affidavits of people who have knowledge of the matter. The application and affidavits must be lodged with the clerk of the court who will submit it to the Court. If the Court is satisfied that prima facie evidence exists of domestic violence, it will issue a protection order against the respondent in the prescribed manner. The interim protection order will be served on the respondent and the respondent will be notified that he may provide reasons on the return date why a protection order should not be granted against him/her. The Magistrate will then make a decision on the return date based on the evidence to either grant a final protection order or set aside the interim protection order.

Protection Orders in terms of the Protection from Harassment Act No.17 of 2011:

No domestic relationship is required to obtain a protection order in terms of the Protection From Harassment Act No 17 of 2011.

According to section 2 of the Act, a complainant may in the prescribed manner apply to the nearest district magistrate court for a protection order against harassment.

Harassment is defined in section 1 of the Act as directly or indirectly engaging in conduct that the respondent knows or ought to know causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably:

(i)Following, watching ,pursuing or accosting of the complainant or a related person or loitering outside the complainant school, workplace, business or residence.
(ii)engaging in verbal, electronic or any other communication aimed at the complainant or a related person ,by any means, whether or not conversation ensues.
(iii)sending ,delivering or causing the delivery of letters ,telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person.

(b) amounts to sexual harassment of the complainant or a related person.

Procedure for Applying for a Protection Order:

A person can apply at their nearest Magistrate Court for a Protection Order. They can approach the clerk of the court. They need to complete Form 2, Regulation 3 of the Protection from Harassment Act, 2011. The complainant must complete an affidavit stating the facts of the incident.

S Hlatshwayo Attorneys Inc. is able to assist you in the process of applying for a protection order. The application and affidavits must be lodged with the clerk of the court who will then submit the application and affidavit to the Court. If the Court is satisfied that there is prima facie evidence that the complainant has been harassed by the respondent, the court must issue an interim protection order against the respondent. The interim protection order must then be served on the respondent in the prescribed manner. On the return date the complainant can provide evidence to the court that the harassment exists and is possibly still ongoing and the respondent may provide evidence opposing it in an opposing affidavit. The complainant will then be given an opportunity to defend himself and rebut what’s stated in the complainant’s affidavit by providing a replying affidavit. The Court will then make a decision based on the evidence to either grant a final protection order or set aside the interim order and dismiss the applicant’s application.

Should you need any advice or assistance with regards to this topic we can be of service, please contact us here for an assessment of the circumstances and advice on how the matter should be approached.

Email: info@shalaw.co.za
Number: +27 39 032 0044

    Source: https://www.ier.co.za/domestic-violence-statistics-in-south-africa/

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