Abrie van der Merwe – Associate
Who can apply for a protection order?
Any adult person with legal capacity can apply for a protection order in South Africa.
Minors and other people without legal capacity can apply for a protection order with the help of their legal guardians or another adult person who has a legal interest to do so. This could be in the event where another unrelated adult person applies for a protection order on behalf of a child against a parent.
Where must you apply for a protection order?
You have to apply for a protection order in your local jurisdiction, meaning at the Magistrate’s Court in whose jurisdiction you reside. If you are unsure where this is, you can always ask the local police station where they will assist you. Alternatively, you can use the following website: https://www.justice.gov.za/maps/maps.html
You can also apply for a protection order in the jurisdiction where the offending party resides, if you do not reside in the same area, however this is unnecessary and a less ideal alternative.
When can you apply for a protection order?
You can apply for a protection order in terms of either the Domestic Act or the Protection from Harassment Act.
The respective Acts’ definitions of these acts are quite thorough and should be consulted to ensure the offending conduct falls within the ambit thereof (refer to part 1 of the series).
The distinction between the Domestic Violence Act and the Protection from Harassment Act is the nature of relationship between the Complainant and the offending party.
The Domestic Violence Act requires there to be a domestic relationship between the Complainant and the offending party, meaning some type of familial or romantic bond. This would typically involve a relationship of husband and wife or siblings.
The Protection from Harassment Act does not require any type of romantic or familial relationship between the parties. This would be appropriate where the parties are colleagues and the offending party commits acts of harassment, such as stalking.
It is advisable that you apply for the appropriate protection order as soon as possible after the acts are committed as urgency is an important factor the Courts take into consideration when granting or dismissing an application. Should there be a significant delay in your application for a protection order, your chances of receiving the order diminishes significantly.
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