PROTECTION ORDERS

Remember the protection order is just a piece of paper so when your abuser gets served, we  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 the victim has an order saying that the abuser is not allowed into the victims home and it eventuates that they have starting living back in the house or what was written on the affidavit was false. Writing and signing a false affidavit is very serious, and can have legal consequences.

Protection orders never run out. 

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

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

Obtaining a Protection Order with 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 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 into the abusers hands it’s not actionable.        Once you have obtained your order keep it with you at all times in case of an incident. We suggest you make copies and have them at home, work and other places that you may frequent.

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

• Stop Physically Beating, Slapping or Pushing  

• Not to come within so many meters of you and your residence, and/or friend/family to contact you in person or telephonically on his behalf. or him and/or the abuser may not contact you telephonically. 

Read the form application form (see attached) carefully 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 formulate a visitation 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 choose to lay a charge against your abuser, it is preferable to do so at a police station in the area where you live. However, this is not always possible as you may be  elsewhere (out of the area that you live in) when the abuse starts.  In these particular situations it may take a few days longer to get your protection order. 

fill in an application for a protection order and write a statement confirming that all you have stated is the truth.

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

There are two possible outcomes. The magistrate can dismiss your request or grant the order. Make sure that the information your provide is detailed honest.

Initially the magistrate will issue an interim Protection Order..

Please note (until it is served to the abuser, it’s not actionable).

You will receive a case number and a court date.  

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

Both you and your abuser must appear in court

When police serve the order on the abuser,  it becomes an actionable Protection Order.

If the police serve the abuser with his notice to appear in court there will be no charge for the service. However if the sheriff of the court has to serve the notice, there will be a fee involved.

It is not true that you have to personally serve the abuser with the notice to appear in court. You are also not expected to take it to the police station closest to the abuser if it is not safe to do so. Take it to the police station closest to the court that issued the notices. 

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 and signed by the abuser, it is then taken back to the magistrate court, 

Ensure that you are at the court hearing on the specified day as per the notices issued.

You may take witnesses’ and three support people to the hearing.  Be aware that only those involved are allowed inside the hearing.

You  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 your abuser fails to attend the hearing, you will state your case to the magistrate, and have any witness state theirs. The magistrate will decide whether or not to grant the Protection Order.

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.

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.