Abrie van der Merwe – Associate
In South Africa a person can apply for a protection order in circumstances where they are, or feel, unsafe.
This concept has been popularized by television and media wherein it is called a “restraining order”. This has created some misconceptions about how it applies in South Africa.
In South Africa, protection orders can be applied for in terms of one of two acts being, the Domestic Violence Act, 116 of 1998 and the Protection from Harassment Act, 17 of 2011. The main difference between these two acts concern the nature of the relationship between the relevant parties. As the name suggests, the Domestic Violence Act is applicable when there is a domestic relationship between the parties, such as romantic partners, family members, etc. The Protection from Harassment Act is applicable in any other type of relationship, such as colleagues, neighbours, etc.
To initiate the process the complainant would have approach the Magistrates Court in which the complainant OR the respondent normally resides. Should you be unsure, the court clerk can advise you accordingly.
Despite the inherent urgent nature of such matters, it is highly advisable that you consult with your legal practitioner before applying for the order. This would ensure that the relevant facts are included in your application.
It is required of a complainant when bringing an application to relate the history of the domestic violence and/or harassment, and provide any evidence that confirms his/her version, such as affidavits from witnesses, photographs, video footage, etc. It is important to relate the events in chronological order with reference to dates and places where possible.
Upon completion, the application will be taken to a magistrate who can either grant an interim order or dismiss the application outright. Magistrates also have the option to call upon the respondent on a return date to show cause why an order as sought by the applicant should not be granted.
The interim order or notice to show cause will contain a date as to when it is required for a respondent to be at court.
It is important for complainants to note that the application should be served on the respondent no less than 10 days before the return date, failing which the complainant runs the risk of having the matter delayed or, worst case scenario, dismissed.
In conclusion, it is important to keep track of instances of domestic violence or harassment, through photographs, messages, etc. and to consult with your legal practitioner as soon as you can upon deciding to apply for a protection order.
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