If you are the victim of domestic abuse and your abuser is someone with whom you are in a domestic relationship, you may apply for a protection order, in terms of the Domestic Violence Act. A protection order has conditions, which set out what the abuser may not do. Should the abuser break these conditions then he can be arrested. If the abuse involves a criminal offence a charge can be laid for that offence.
By asking for a protection order you are not laying a criminal charge, and you do not need to make a criminal charge to get a protection order. However, if you are the victim of a type of domestic abuse that is also a crime you can choose to apply for a protection order, or lay a criminal charge, or do both. Acts of abuse which are also crimes include common assault, assault with the intention of doing grievous bodily harm, indecent assault, rape, incest, attempted murder, malicious damage to property, pointing a firearm, and abuse of animals.
Once you have the protection order, if your abuser breaches (breaks the conditions of) a protection order, then that is a crime and he can be charged with the crime of contempt of court (even if the breaching act is not ordinarily a crime, for example, controlling behaviour). If the breach itself involves a crime such as assault, then he can be charged with both contempt of court and assault.
Having a protection order means having the power to have your abuser arrested as soon as he commits an act of abuse. All you need to do is report that he has breached the conditions, and the police must act immediately.
Before getting a protection order, you can get an interim protection order quite quickly by filling in certain forms, and that interim order will specify a date at which the final order will be considered (a return date). Once a final order is made, it is permanent and can only be changed by applying to the courts.The kinds of protection you can get in a protection order include conditions that:
The first step in getting a protection order is for you to complete a form known as Form 2: Application for a Protection Order.
WHERE SHOULD I GO?
Form 2 is available at police stations and courts, and on this site, although police may send you to the courts for help with filling out the form. The police should also give you Form 1, which is a document explaining your rights. If you are hurt or need a different place to stay because of the abuse, the police must help you to get medical treatment and help you with finding a place of safety.
Any court that covers the area in which you live or work, or in which your abuser lives or works, or which covers the area in which any incidents of abuse took place can grant you a protection order. Ordinarily, you should go to the courts during ordinary court hours (weekdays, 8:00 - 16:00). After-hours applications will normally be taken only if you can show you will suffer undue hardship if the matter is not dealt with immediately.
Some courts have a room set aside to deal with domestic violence cases. Volunteers are sometimes available to help you with filling out Form 2, and the clerk of the court may also be able to help. The clerk will also give you Form 3, which explains how the protection order works and warns you against lying when you complete Form 2, as this is a criminal offence.
DO I HAVE TO APPLY MYSELF? CAN I APPLY FOR SOMEONE ELSE?
Someone else can make the application for you. All they need is your written permission to do so. If you are a child (under 18 years of age), mentally retarded, unconscious, or unable to give permission for any other reason, someone else can apply for you without your permission. If you are a child you can apply for a protection order without the assistance of your parents, guardian, or anyone else. If you are applying for a child, you can do so without the child's parents', guardian's, or anyone else's assistance or permission.
WHAT INFORMATION DO I NEED?
Form 2 is made up of a number of sections.
Part 1: The applicant
Part 2: If you are not the applicant
Part 3: The respondent
Part 4: Others affected
Part 5: Statement of abuses
Part 6: Any information on how urgent the application is
Part 7: What conditions you need in the protection order
Part 8: Any additional conditions
Part 9: Personal property
WHAT WILL HAPPEN AFTER COMPLETING THE APPLICATION FORM?
Once Form 2 has been completed, it has to be certified. This means that you have to make an oath in front of a commissioner of oaths saying that you know and understand everything you have written in Form 2, that you don't object to taking a sworn oath, and that you consider the oath to be binding on your conscience. This can be done at a police station, at the courts by a Justice of the Peace, or by a magistrate.
Once Form 2 has been completed and certified, you need to take it to the clerk of the court, who will fill out another form called Form 4: Interim Protection Order and set a return date (the date on which your final protection order will be considered) for the case. The clerk will hand both Form 2 and Form 4 to the magistrate, who may sign the forms granting an interim protection order.
WHEN WILL THE INTERIM PROTECTION ORDER BE GRANTED?
In some courts, the magistrate might meet with you briefly before granting the order to ask any questions they might have about your request for immediate protection. At some courts, you may have to return a day or two later to find out whether the interim order has been granted, while in other courts the forms can be signed the same day; generally, this depends on how busy the court is, and how urgent your application is.
WHAT HAPPENS ONCE THE INTERIM ORDER IS GRANTED?
Once it has been granted you will be given a copy of the interim order and it will also be 'served on' (handed to) your abuser by the police, or if you can afford Sheriff's charges, by the Sheriff (in South Africa the Sheriff is an officer of the court responsible for serving documents that need to be served in civil cases). The interim protection order does not come into effect until it has been served. Serving of the interim order by the police is free. If you can afford the service charges, it is better to ask for the Sheriff as the police have many cases and are likely to take longer than the Sheriff. The clerk of the court can also arrange for service by registered mail, but this involves a cost and will not work if your abuser does not go and collect and sign for the documents at the post office.
Whoever serves the order must give the clerk of the court a 'return of service' document to confirm that they have served the interim order and state when they served it. Once the clerk has received the return of service, they must ensure that a certified copy of the interim order, as well as a warrant for the arrest of the abuser (Form 8) is served on (given to) you. This warrant only comes into effect if your abuser breaks the conditions of the interim protection order.
If you do not receive the warrant you should go to the court to collect it. Having the warrant means that should your abuser break the conditions of the interim order you can have him arrested or charged by going to the police and giving them the warrant and an affidavit (Form 10) describing how he has broken the conditions of the interim protection order. The police must then arrest him if it appears you might suffer harm.
The interim protection order will have a date called a 'return date' listed on it. On this date you (the applicant) and your abuser (the respondent) will have the opportunity of giving the court further information about the abuse, and the conditions in the interim order will either be confirmed, changed or set aside by the magistrate, in a final protection order. The return date may not be sooner than ten days after serving of the order.
WHAT HAPPENS IF THE INTERIM ORDER IS NOT GRANTED?
In some cases, the magistrate may decide not to grant an interim protection order. Instead, a notice (Form 5) will be served on your abuser, which will also have a return date, and which will warn your abuser to appear in court on that day and give reasons why a protection order should not be made against him. No warrant of arrest is issued.
WHAT HAPPENS ON THE RETURN DATE?
On the return date, your final protection order can be granted. This is a permanent order and will remain in force until an application for setting it aside is granted by a magistrate. On the return day, your case will be considered in the magistrate's chambers (office), not in open court. No one except officers of the court and people directly involved in the matter may be present. However, you may bring along up to three people to support you. You or the respondent can have lawyers representing you at any stage of these proceedings. No one is allowed to publish or reveal the identity of any party in these proceedings. Your physical address may also not be revealed in any documents and proceedings related to the protection order if you ask for that on Form 2 (unless it is necessary for describing the conditions of the protection order).
UNDER WHAT CONDITIONS WILL A FINAL PROTECTION ORDER BE GRANTED?
If your abuser does not oppose the order, or if your abuser is not present but there is proof the interim order or notice was served on your abuser, or if neither of you is present but there is proof the interim order was served, then it is likely the final protection order will be granted.
UNDER WHAT CONDITIONS WILL THE PROTECTION ORDER BE SET ASIDE (NOT GRANTED)?
If neither of you appear, and there is no proof of service, then it likely the interim order will be set aside. If only you appear but there is no proof of service, then it is likely the interim order will be extended to another return date. If you alone appear or both of you appear and request that the interim order be set aside, then it will be set aside.
UNDER WHAT CONDITIONS WILL THE CASE GO TO TRIAL INSTEAD?
If your abuser is present and contests the granting of a final protection order, the case will go to trial, which means the magistrate will hear all the evidence given by you or any other witness and make a decision. At trial, the magistrate can direct that any cross-examination of you or any other witness by the abuser (where a lawyer is not doing the questioning for him) be done by putting the question to the court and then having it relayed to you by the magistrate, so that the abuser does not question you directly. You should ask for that if you think you will feel intimidated under cross-examination.
If the court at trial finds on 'a balance of probabilities' - that is, that it is more likely than unlikely - that your abuser (the respondent) has committed or is committing an act of domestic violence, then it will issue a final protection order.
WHAT HAPPENS ONCE A FINAL PROTECTION ORDER IS GRANTED?
A warrant of arrest is issued immediately on the granting of the final protection order, but it is suspended as long as your abuser does not break the conditions of the protection order. You must make sure you take the warrant of arrest with you. Having the warrant means that should your abuser break any of those conditions, all you need to do is complete a sworn affidavit (Form 10) stating how the conditions of the protection order have been broken, and hand your affidavit together with the warrant of arrest to the police, who must arrest your abuser immediately if it appears you might suffer harm. If it does not appear you might suffer harm, then the police may instead give your abuser a notice to appear in court on a criminal charge of breaching the protection order.
If you use up the warrant (it can only be used once and becomes 'executed and cancelled') and you need a second one, or the first warrant is lost or destroyed, you can apply for another one (Form 9).If your abuser is found guilty of breaking the conditions of a protection order in a criminal case, he can be fined or sentenced to prison for not more than five years.
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