1. Domestic violence

    What is a Protection order?

    A protection order aims at preventing the reoccurrence of domestic violence or sexual harassment by stating what conduct the alleged offender must refrain from doing. As long as he/she complies with the protection order, the complainant will be safe. If the respondent contravenes any stipulation of the protection order, he/she may be arrested. Once a protection order is granted, it is enforceable throughout the country.

    How to apply for a Protection Order
    • The complainant must make an affidavit and complete an application form at a police station. Please read the document "Notice to complainant in a case of domestic violence" before completing the application form. This explains your rights and the steps you may take to protect yourself, your children and other members of the shared household.
    • Supporting affidavits by persons who have knowledge of the matter in question, may accompany the application.
    • These documents must be handed to the clerk of the nearest court. The court will consider the application immediately.
    • The application for a protection order is not limited to the complainant. An application for a protection order may be brought on behalf of the complainant by any other person who has an interest in the well-being of the complainant. This includes a counsellor, a health service provider, a social worker, a teacher or a member of the SAPS.
    • If the court is satisfied that there is sufficient evidence that the suspect is committing or has committed an act of domestic violence/harassment and unnecessary hardship may be suffered by the complainant as a result of the act, the court will issue an interim protection order against the respondent.
    • The application for an interim protection order may be brought at any time and not only during office hours or on court days.
    • The purpose of this interim protection order is to provide immediate protection to the complainant.
    • The interim protection order has no force or effect until it has been served on the respondent.
    • The court is also required to issue a suspended warrant of arrest for the respondent. A breach of the protection order requires that the respondent must be arrested by the police immediately.
    • The interim protection order is not a final order from the court, but a temporary order which grants immediate relief until the return date (the date on which the applicant and the respondent, after being given due notice, are to appear before court to have the protection order made a final order). On this return date, the respondent is afforded the opportunity to present to the court reasons why the protection order should not be made final.
    • If the respondent does not appear in court on the return date, but the court is satisfied that proper notice has been given to the respondent and that there is sufficient evidence that the respondent has committed or is committing an act of domestic violence/sexual harassment, the court may make a final order on the return date.

    The protection order will prevent the respondent from -
    • committing any specified act of domestic violence/sexual harassment
    • entering the joint residence or entering a specific part of the residence
    • entering the victim’s residence if they are not living together
    • entering the victim’s place of employment/office
    • having contact with a child or children, if it is in the best interest of the child.

    If a protection order has been obtained, the respondent cannot prevent the victim or a child who usually lives at the shared residence, from entering or remaining in the shared residence or any part of it.

    When applying for a protection order, the complainant may request for the removal of the respondent’s firearm or other dangerous weapon. If the Magistrate orders the police to remove the firearm, the police will keep the firearm until the case has been finalized. The firearm can only be returned to the respondent by order of the court, and the court may add conditions. The court may also order the State to keep the firearm if it is in the best interest of the victim’s safety.

    It is important to remember that criminal charges may be laid in cases where acts of domestic violence/sexual harassment constitute an offence, such as assault or rape. It does not mean that one must first exhaust the remedies available under the protection order before laying the criminal charges, if this offence was committed. One can register the criminal charge with or without a protection order.

    The court may order a police officer to accompany a complainant to retrieve his/her property from a specified place to ensure the safety of the complainant.

    Important: If one disobeys the protection order, it must be reported to the police immediately with the copy of the protection order so that the respondent can be arrested and be brought before court. Only the Magistrate may release the arrested person as the Magistrate issues the warrant.

    Source: South African Police Service March 2019.

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