Abrie van der Merwe – Associate
A protection order in South Africa is a special type of interdict, provided for by two Acts, namely the Domestic Violence Act, 116 of 1998, or the Protection from Harassment Act, 17 of 2011.
An interdict is a specific type of Court order which either prevents a person from doing something or forces them to do something.
A protection order would typically prohibit a person, the offender, from performing some act mentioned in the respective Acts.
The Domestic Violence Act defines domestic violence as physical abuse, sexual abuse, emotional abuse, verbal abuse, psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry onto a complainant’s residence without consent or any other controlling or abusive behaviour.
It is important to note that the Domestic Violence Act goes one step further to mention that the above acts constitute domestic violence where the conduct harms or may cause imminent harm to the safety, health or wellbeing of the complaint.
The Protection from Harassment Act on the other hand defines harassment as (i) following, watching, pursuing or accosting the complainant or a related person at or near the building where they reside, work, study or happen to be; (ii) engaging in verbal, electronic or any other communication aimed at the complainant or any related person; (iii) sending, delivering or causing the delivery of communications or objects to the complainant; or (iv) sexual harassment.
The Protection from Harassment Act states the above acts constitute harassment when the offender commits the above acts knowing (or where the perpetrator ought to know) that the conduct will cause harm or inspire the reasonable belief that harm will be caused to the complainant or a related person.
A protection order must be distinguished from a “restraining order” that one hears about in US media. From numerous television series and movies it is apparent that a restraining order allows for order wherein the offender must stay a certain distance away from the person in whose favour the order was granted (the Complainant).
Although our South African protection orders cannot keep a person a certain distance away from the Complainant, it is possible for the order to state that the offender is not allowed to go to, alternatively enter, certain places, such as the Complainant’s residence or place of work – in addition to interdicting further acts of domestic violence or harassment.
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