Obtaining a Protection Order
Some people suffer emotional and physical abuse daily but are not sure what they can do to protect themselves.
There are two options available to them, apply for a Protection Order or apply for a Harassment Order.
A Protection Order is an order issued by a court ordering a person with whom one has or has had a domestic relationship (the respondent), to stop the abuse.
It’s a legal document that specifies the conditions that an abuser must adhere to, as specified by the courts.
The conditions for a Protection order in terms of Domestic/gender base violence are as follows:
The order may also prohibit the respondent from:
If you feel or have reason to believe that you're a victim of any act of domestic/gender-based violence, you can approach your local Magistrate Court and request assistance in bringing an application for a protection order. Here is a guide for victims of domestic violence.
If you’re unable to approach the court in person, for example if you’re a child or disabled, someone else can approach the court on your behalf, but with your written consent.
The steps for obtaining a Protection Order are the following:
Before obtaining a protection order, you need to apply for an interim protection order first. The court in its discretion will issue an interim protection order after a court date has been issued to the respondent.
The interim order specifies the date at which the final order will be considered. Only once the final order is made, it will be permanent and can only be changed by applying to the courts.
Any victim of domestic/gender-based violence is advised to first register a criminal case at their local police station. In doing so it supports the application for a protection order.
Requesting a protection order doesn't mean that you're laying a charge against your abuser. However, if you're a victim of a type of domestic abuse that's also a crime, then you can apply for a protection order, lay a criminal charge, or both.
Some examples of abuse that are also crimes include common assault, rape, incest, attempted murder and the abuse of animals.
If your abuser breaches, or breaks the conditions of the protection order, the complainant/victim is obliged to go to the police station and open a criminal case.
The complainant must file an affidavit and in an explicit manner include all forms of abuse in the affidavit.
The respondent will then be criminally charged with the contempt of court. This applies even if the breach is not an actual crime, such as controlling behavior. If the breach itself involves a crime, such as assault, then the abuser can be charged with both contempt of court and assault.
Relationship between Domestic Violence (DV) incidents registered and DV criminal cases registered:
“Any victim of domestic/gender-based violence is advised to first register a domestic violence incident and if necessary a criminal case at their local police station. In doing so it supports the application for a protection order.”
As there is no obligation that can be placed on a person who suffered a DV incident to report a criminal case, such a person is therefore advised to register a DV incident at a police station. If such a person want to open a criminal case also, a criminal case will be opened. Therefore, there will always be a difference in the number of DV incidents versus the number of DV cases registered at a station, as not all DV incidents registered in the DV register [SAPS 508 b register] will result in a criminal cases being opened.
If you’re a victim of abusive or threatening behaviour by someone other than a person that’s living with you, or with whom you have a domestic relationship, you can apply for a Harassment Order.
The existence and process to apply for a harassment order:
There is legislation in place, where a person can apply for a harassment order in court, if this person believe that he/she is illegally targeted by another person and thereby harassed. The process to apply for such an order is similar to that of the protection order process, as a court issue an interim order, after application by as person who feel that he/she is being harassed and there is a court session and if the facts of the harassment can be confirmed, a final order is issued. The serving of such an order will also be done via the SAPS process register [SAPS 264 register] and a return of service is provided by the SAPS official who served the relevant documentation, in order to confirm that the order was indeed served.
The following is important to know about Harassment Orders:
Harassment includes the following:
Did you know there is a 24/7 GenderBased Violence (GBV) hot-line facility where you can report gender-based violence.
The first step in getting a protection order is for you to complete a form known as Form 2: Application for a Protection Order.
Form 2 is available at police stations, the courts, and the Justice and Constitutional Development website, 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're 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. It's also within your rights to request a police escort when collecting personal property.
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 the court hours (weekdays from 8am - 4pm).
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. Form 3 is available at the court.
Please remember if you go to a court house or justice service point, you must -
(a) at all times wear a cloth face mask or a home-made item that covers the nose and mouth or another appropriate item to cover the nose and mouth, and
(b) observe the social distancing requirement of 1,5 metres in any queue or seating arrangement and must adhere to any demarcations at such court room, court house or justice service point.
Do I have to apply myself? Can someone else apply on my behalf?
Part 1: The applicant
Part 2: If you're 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 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?
What happens once the interim order is granted?
Once the interim order has been granted you'll be given a copy and it will also be "served on" (handed to) your abuser by the police, (very important because some police officers are requesting the complainant to deliver the issued protection order to the respondent) 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 doesn't come into effect until it has been served. Serving of the interim order by the police is free.
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.
What happens if the interim order is not granted?
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's necessary for describing the conditions of the protection order).
Under what conditions will a final protection order be granted?
Under what conditions will the case go to trial instead?
What happens once a final protection order is granted?
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 5 years.
These facility categories:
|Government Body:||(The Government of South Africa)|