October 29, 2020

Obtain a Protection Order Steps

Step 1: Gather information and documentation

  1. Take note of all the occurrences of domestic violence committed against you or your children on paper. Be clear with dates and times.
  2. Obtain all the relevant details of the person whom you want to be protected against, including his/her home and work addresses, telephone numbers and identity number.
  3. Ensure you have your identity document.

You don’t have to, but it will help if you also have:

  1. Photos of the physical abuse. If you can, take photos so you can show how you were hurt and give the magistrate a better idea of how you have suffered.
  2. A photo of the abuser. It can be a photocopy of a photo. This is useful so that the police can recognise the abuser when they serve him/her with the protection order.
  3. Papers showing who bought the items. If your goods or property were damaged.
  4. Photos of the violence. If any goods or property were damaged, photos will show the magistrate exactly what was done.
  5. Confirmation letters confirming the fact that you have been abused. You can get letters from social workers, doctors, etc.
  6. Statements/affidavits. From people who witnessed the abuse.
  7. A J88 form completed by a doctor. The J88 form has drawings of the human body on it. After examining you, the doctor marks your injuries (bruises, wounds, etc.) on the drawings. This is powerful evidence for the court. You can obtain a J88 form from your nearest police station. If you have an interim protection order, take that along with you. If the police say they don’t have any J88 forms, ask to speak to the station commissioner. If you still can’t obtain a J88 form, report it to the clerk where you got your protection order. Take the J88 form to a doctor at a hospital or to a district surgeon. The doctor will examine your injuries and fill it out for you. Make two copies of the filled-out J88 form and return one of them to the police station to be put into your file. Keep the other copy.

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How does one obtain a protection order in terms of the Domestic Violence Act, 1998 (Act No 116 of 1998)?

Who can apply for a protection order?

  • Any person who has been in a domestic relationship with the respondent.
  • When is there a domestic relationship between the complainant and the respondent?
  • If they are or were married to one another; if they live or lived together in a relationship in the nature of a marriage, though they are/were not; if they share parental responsibility over a child; if they are/were engaged, dating or in a customary relationship; if they are blood relatives or related by affinity or adoption; if they share or recently shared the same residence.

Against whom can a protection order be obtained?

  • Any person who is or has been in a domestic relationship with a complainant and who has committed or allegedly committed an act of domestic violence against the complainant.
  • Who has the duty to inform the complainant of their rights in terms of the DVA?
  • A member of the South African Police Service (section 2) Form 1 of Regulation 2; Notice to complainant in a case of domestic violence.

Where can a complainant apply for a protection order?

  • At any Magistrates Court or Family Court established in terms of an Act of Parliament (section 4(1) read with section 1 (section 12).
  • Any court in the area where the complainant permanently resides, carries on business or is employed.
  • In the area where the respondent resides, carries on business or is employed or any court in the area where the abuse took place or is taking place.

Can a complainant be represented by a lawyer when applying for a protection order?
Yes – section 14.

With whom must the application for a protection order be lodged at the Magistrate’s Court?
The Clerk of the Court – section 4(7).

Can a minor apply for a protection order without the assistance of a guardian?
Yes – section 4(4).

When is it allowed for an application for a protection order to be brought outside ordinary court hours or on a day that is not an ordinary court day? If the court is satisfied that the complainant will suffer undue hardship if the application is not dealt with immediately – section 4(5).

What documents must the complainant submit when applying for a protection order?
An application substantially corresponding to Form 2 of Regulation 4 of the DVA regulations; application for a protection order.
Supporting affidavits by persons who have knowledge of the matter – sections 4(6) and (7).

What happens if the court does not issue the interim protection order?
Section 5(4) – the court must direct the clerk of the court to cause certified copies of the application and any supporting affidavits to be served on the respondent in the prescribed manner, with the prescribed notice (Form 5 of Regulation 7); calling on the respondent to show cause why a protection order should not be issued.

Issuing of final protection order
Section 6(1) – A final protection order will be issued if the respondent does not appear on the return date as set out in the interim protection order, or if the respondent does not appear on the return date as set out in the notice when an interim protection order was not granted. Section 6(2) – if the respondent appears on the return date as set out in the interim protection order or notice and opposes the issuing of a protection order, the court will then proceed to hear the matter. A protection order issued by the court must be in the prescribed form either in accordance with Form 6 of Regulation 8, or Form 7 of Regulation 8.

What happens after a protection order has been issued?
Section 6(6) – the clerk of the court must send certified copies of the protection order and warrant of arrest to the police station of the complainant’s choice.

Issuing of the warrant of arrest
Section 8(1)(a) – the warrant of arrest must be authorised and issued in accordance with Form 8 of Regulation 9. Whenever a court issues a protection order, the court must make an order authorising the issue of a warrant of arrest. The execution of the warrant of arrest is suspended subject to compliance with any prohibition, condition, obligation or order imposed by the court.

Information provided by Government Communications.

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Step 2: Seek assistance

Any member of the SAPS must assist you in every way necessary, including:

  1. giving you information about your rights;
  2. explaining the contents of the notice that sets out your rights. This explanation must include the remedies that you have in terms of the Domestic Violence Act and your right to lay a criminal charge, if the act committed has an element of violence;
  3. finding a safe place for you to stay or helping you make arrangements to find a place; and
  4. getting you medical treatment if required.

The following persons can apply for an interim protection order with your written consent, unless you are a minor, a mentally retarded person, unconscious or if the court is satisfied that you are unable to give the required consent:

  1. counsellors
  2. health workers
  3. police officers
  4. social workers
  5. teachers

 

Step 3: Apply for the interim protection order

Every magistrate’s court or High Court is a domestic violence court. To obtain the interim protection order, you need to go to the magistrate’s court in the area where you live or in which the respondent lives or where the abuse took place. Your application for the order will be made by way of a written statement (affidavit), outlining:

  1. the facts on which the application is based;
  2. the nature of the order; and
  3. the name of the police station where you are likely to report any breach of the order.

Where the application is brought on your behalf by another person, the affidavit must state:

  1. the grounds on which they have a material interest in your wellbeing;
  2. their occupation and the capacity in which they bring the application;
  3. your written consent, except in cases as outlined above.

Once at the court, the following steps will be taken:

  1. You fill in an application form for a protection order and write out a statement (affidavit) about the abuse.
  2. You make a sworn statement to the clerk that what you have written is true and you sign the application form.
  3. The clerk signs and stamps your application form, opens a file for you and puts your papers into your file.
  4. The clerk gives your file to the magistrate who reads through your application. The magistrate can either:
  5. dismiss your application if there is no evidence that domestic violence is taking place;
  6. grant an interim (temporary) protection order in your favour, to be finalised on a date provided by the court where the respondent will have a chance to give his/her side of the story; or
  7. postpone the matter without granting an interim protection order and provide a date when the respondent will get a chance to give his/her side of the story.

 

Step 4: Serve the interim protection order

If the magistrate grants you an interim protection order, the following will happen:

  1. The clerk notifies you of the return date, when you will need to go back to court, and gives you a case number.
  2. The magistrate then issues a notice to appear in court and the respondent is informed that an application for an interim protection order was granted and that he/she must appear on the return date to give his/her side of the story.
  3. The clerk files the original application and interim protection order forms into your file and hands you three copies. Two of the copies are for the sheriff or the police, depending on who will serve the interim protection order on the respondent. The clerk will also give you a return of service form to take to the police or sheriff.
  4. You get the police or sheriff to serve the interim protection order. Please note that when the police serve the order it is done at no charge, however, when the sheriff serves the order, you will have to pay.
  5. The police or sheriff visits the address that you have put on your form and serves a copy of the interim protection order on the respondent. It is crucial that the respondent is informed personally of the application and return date.
  6. The police or sheriff fills in the return of service form and returns it to the court when the interim protection order has been served on the respondent.

It is important to note that an interim protection order has no force until it is served on the respondent. Once the interim protection order is granted and served on the respondent, you will be able to have the respondent arrested if he/she disobeys it. Breaching any of the conditions set out in the order can result in the respondent receiving either a fine or a prison sentence, or both.
When the court grants an interim protection order, it simultaneously issues a warrant of arrest against the respondent. The warrant of arrest is suspended subject to compliance with any condition, prohibition or obligation in terms of the interim protection order.

 

Step 5: Make the order final

If the respondent does not appear in court on the day of the hearing, the protection order will be made final. If the respondent does appear, the court will hear evidence from you, the respondent and any other witnesses that may have been called. The court will then consider all the evidence put before it in order to make a decision.

In terms of the Domestic Violence Act, these proceedings are held in private. The only people that may be present are the parties involved, their legal representatives, anyone who has brought an application on your behalf, witnesses and the officers of court. You may also bring three people to provide you with support. The court has the power to exclude anyone from the proceedings. The Act also prohibits the publication of any information that may directly or indirectly reveal the identity of any party to the proceedings. When the magistrate has heard all the evidence, he/she will decide whether or not to issue the protection order.

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