Protection Orders

Remember the protection order is just a piece of paper so when your abuser gets served, I would suggest you make several copies, abusers have been known to get them and tear the up.

Protection orders can be cancelled if it comes to light that the victim violates the order, if she has an order saying that he’s not allowed into her home and it eventuates that he starting living back in the house or what was written on her affidavit was false. Writing and signing a false affidavit is very serious, so always tell the truth.

Protection orders never run out they last for years, they do not have to be renewed.

A victim can rescind a protection order and later take another out.

Please note: Protection orders also can be obtained for you by another person, with your written permission/ consent. 

No written permission- can only be executed in cases of a minor or those who are mentally disabled, or unconscious or unable to give consent.   

Those who can obtain a protection order on your behalf: 

Teachers

Health professionals

Counsellors

Police officers

Social workers

Steps obtaining the protection order:

The interim protection orders.

The final order of protection.

Steps to take when applying for a protection order: 

The Interim protection order is the first step: Please be advised that until it’s been served in the abusers hands it’s not actionable, if you have applied- got the interim and the abuser slaps or abuses you and he has not been served it’s not actionable.

Once you have obtained your order keep it with you at all times in case of an incident at work, make copies if you wish.

On the order of protection, there are several boxes to be ticked to stop the abuser: 

Stop;

Physically

Beating

Slapping

Pushing  

Not to come within so many meters of you and your residence, or not any friend- family to contact you for him, not to phone you. 

Please read the form and tick all the relevant boxes.

If you want the abuser to still reside with you, then the box:  Do not to come within meters should not be ticked.

If you have children and want the children to see the father, and have visits, contact the family advocate, to make a visit plan.

How to obtain a protection order the procedure:

Every magistrates court or high court is a domestic violence court and an interim protection order can be obtained 7 days a week including holidays.

You must apply for an interim protection order as the first step and must be acquired at the magistrate’s court closest to the place where you and the abuser resides.

You will be required to write a statement on what happened and why you need one.

If you have laid a charge it’s better to be at a police station in the area where you live but this is not always convenient as you could be away on holiday  or out of the province when the abuse starts, in that particular case  this may take a few days longer than at a police station in your area, this also applies when reporting a breach of the protection order.

You fill in an application for a protection order with a statement that confirms by you that all you have stated is the truth, this is important that all you write is truthful.

The clerk then takes your form to the magistrate who looks over your statement (this may take a day or two)

The magistrate can do one of two things dismiss or grant the order.

If the magistrate decides to dismiss, it could be he had found no grounds for domestic violence.

But if all is in place by the magistrate, the interim order will be granted.

Please note (until it served it’s not actionable)

You will receive a date and a case number to go back to court, both you and the abuser, to state your case.

The magistrate will issue a notice to appear and issued the abuser will be informed that the interim order has been granted.

Both must appear in court

The police serve the order on the abuser, then its actionable,

If the police serve the abuser, its free, if the sheriff of the court serves, you will pay.

If you are told that you have to serve the abuser that’s not true, and if you are told to take it to the police station in the area of the abuser, and if it’s dangerous to go, explain to the police near you or at court.

The order will be delivered to the abuser by the Sheriff or the police, to the address you have provided, and serves the abuser with a copy.

Once the order has been served by the Sherriff / police it’s taken back to the magistrate court, after being signed by the abuser.

The date given to the victim and abuser, must appear for the hearing,

When attending a hearing the victim can take witnesses’, and 3 support, people, but be aware that only those involved are allowed.

The victim can then tell their side of the story, and the abuser gives theirs, none of the proceeding are made public, and at the end the magistrate decides to grant or not.

If the abuser fails to attend, the victim will state their case to the magistrate, and have any witness state theirs, and the magistrate will decide to grant or not.

Police stations in South Africa have been trained extensively in Domestic Violence, you will find that they will assist you, but remember some stations are small and only have a small contingent of police staff and vehicles available on night duty so been patient and they will assist you.

Please note that if you are not getting help from a police officer, you can report with the station commander at that station.

Breaching the protection Order:

Breaching a protection order is an offense. If the respondent breaches the protection order, in terms of the Domestic Violence Act the complainant must file an affidavit with the SAPS. Everything the complainant says in the affidavit is under oath and, therefore, has to be the truth. If the complainant willfully lies under oath or makes a false statement, he/she may be criminally charged in terms of the Act, and could face a two-year prison sentence if convicted.

Where threats of death or injury have been made and where a respondent’s state of mind or mental condition warrants it, a court must order the seizure of any arms or dangerous weapons in the possession or under the control of the respondent. On receipt of the affidavit, the police will arrest the respondent if there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged contravention.

In circumstances where the police feel there are insufficient grounds for arresting the respondent, they will charge the respondent with breaching the protection order and notify him/her to appear in court on a specific date, at a specified time. Once such a charge is laid, a prosecutor may not refuse to institute prosecution or withdraw the matter without the consent of the director of public prosecutions. If the respondent is found guilty of violating the protection order, a fine or imprisonment for a period not exceeding five years, or both, may be imposed.

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Once the respondent has been arrested for breaching the protection order, the complainant may not decide to withdraw the charges. The senior public prosecutor has sole discretion to withdraw charges.

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