With the emergence of the Johnny Depp and Amber Heard Trial saga, domestic violence has never been more prevalent. South Africa, a country where the right to be safe and free is enshrined in our Constitution. The judicial system encompasses 2 types of Protection Orders 1. the Domestic Violence Act 116 of 1998 (hereinafter referred to as the ‘DPO’) and 2. the Protection from Harassment Act 17 of 2011 (hereinafter referred to as the ‘HPO’). It is important to understand which Act has authority in which instance.
Be advised that an Interim Protection Order or a Final Protection Order only comes into effect when personally served upon the alleged abuser by either the sheriff of the Court or a Police official.
DOMESTIC VIOLENCE PROTECTION 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. This includes a roommate who shared a common residence. It’s a legal document issued by a Magistrate in the jurisdiction area in which the abuse occurred that specifies the conditions that an abuser must adhere to, as specified by the courts.
HARRASMENT PROTECTION ORDER:
A Protection Order is an order issued by a court ordering a person with whom one is not in a domestic relationship i.e., a neighbour (the Respondent) and who doesn’t share a common residence, to stop the harassment or abuse. It’s a legal document issued by a Magistrate in the jurisdiction area in which the abuse occurred that specifies the conditions that an abuser must adhere to, as specified by the courts.
DO I QUALIFY FOR A DOMESTIC VIOLENCE PROTECTION ORDER?
The conditions for a Protection Order in terms of domestic/gender base violence are as follows:
- There must be a pattern of abuse i.e., repetitive actions.
- It must be a form of domestic violence which includes but are not limited to:
- Physical violence,
- Sexual violence,
- Financial abuse, and
- Emotional/verbal violence.
- The order may also prohibit the Respondent from:
- enlisting the help of another person to commit any such act;
- entering a residence shared by a complainant and the Respondent or a specified part of the shared residence or the victims place of employment or where the victim resides; committing any other act as specified in the protection order including an order to seize any firearms or dangerous weapon from the Respondent; or
- financially threatening the victim by making monetary relief available to the victim.
DO I QUALIFY FOR A HARRASMENT PROTECTION ORDER?
- No pattern is needed, and a first offence can be sufficient for a Harassment Order.
- No relationship is required, and it can be against someone you don’t even know.
- No violence is required.
- It must be a form of harassment which includes but are not limited to:
- unwanted packages,
- letters, psychological harm,
- physical harm, and
- financial harm.
- The order may also prohibit the Respondent from:
- To cease and desists with his/her stalking, harassing behaviour or enlisting the help of another person to commit any such act.
HOW DO I OBTAIN A PROTECTION ORDER?
The following procedure has been established to obtain a Protection Order:
- OBTAINING AND COMPLETING:
For a Domestic Violence Application, one will need to obtain a Domestic Violence Act Form 2 and complete the Form 2 as accurate as possible supported by an Affidavit setting out in detail what the Respondent did and on what date this incidents happened.
For a Harassment Protection Application, one will need to obtain the Protection against Harassment Act Form 2 and complete the Form 2 as accurate as possible supported by an Affidavit setting out in detail what the Respondent did and on what date this incidents happened.
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.
2. DISCRETION OF THE COURT TO GRANT AN INTERIM ORDER:
Before obtaining a protection order, you need to apply for an interim protection order first. A magistrate court will consider the application. The court in its discretion will issue an interim protection order after a court date has been issued to the Respondent.
3. SERVICE UPON RESPONDENT:
An interim protection order will be granted and will then be served 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.
4. RESPONSE BY THE RESPONDENT:
The Respondent will now have an opportunity to file and serve an answering affidavit upon the complainant and the Court if the Application is opposed. If the Respondent decides not to oppose the Application, no further action is needed.
5. GRANTING A FINAL ORDER:
A court proceeding or hearing of evidence will determine whether a final protection order should be granted.
6. CONSEQUENCES FOR THE RESPONDENT:
Consequences for the Respondent if he/she violates the conditions of the final protection order. 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 and include all forms and dates of abuse in the affidavit. The Respondent will then be criminally charged with 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.
If your abuser is found guilty of breaking the conditions of a protection order in a criminal case, he or she can be fined or sentenced to prison for not more than 5 years.
To be successful in obtaining a Protection Order, one must note the dates, time and place where the harassment or abuse took place and thus documenting the abuse thoroughly as this will give the presiding officer the necessary evidence to grant an Interim Order against the Abuser. One should further avoid using a Protection Order maliciously, unreasonably and or vexatiously to obtain an upper hand in a litigation matter. If proven that one acted unreasonably, vexatiously and or maliciously an appropriate cost order will be granted against such a party.
Thus, it is important to call a qualified attorney to advise you on your prospects of success. If you feel your life may be in danger, don’t hesitate to apply for an Interim Protection Order.
By Tobie Schmahl
Cavanagh & Richards Attorneys