Obtaining a Protection Order
In terms of the Domestic Violence Act, 1998, if you feel that you're a victim of any act of domestic violence, you can approach your local Magistrate Court and request assistance in bringing an application for a protection order.
What is a protection order?
A protection order is a legal document that specifies the conditions that an abuser must adhere to, as specified by the courts. For example, the abuser:
Before obtaining a protection order, you need to apply for an interim protection order first.
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.
Requesting a protection order doesn't mean that you're laying a charge against your abuser. You don't need to lay a criminal charge in order to obtain a protection order. 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 protective order, they will be charged with the crime of contempt of court. This applies even if the breach is not an actual crime, such as controlling behaviour. If the breach itself involves a crime, such as assault, then the abuser can be charged with both contempt of court and assault.
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?
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 cannot be downloaded online but is available at the court.
Do I have to apply myself? Can someone else apply on my behalf?
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 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. Form 4 cannot be downloaded online but is available at the court.
When will the interim protection order be granted?
What happens once the interim order is granted?
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 don't 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). 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 10 days after serving of the order.
What happens if the interim order is not granted?
Under what conditions will a final potection 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)|