APPLYING FOR PROTECTION ORDER

BY Danie Terblans

Borrowed from SAPS website and other notes:

APPLYING FOR PROTECTION ORDER
A protection order aims at preventing the reoccurrence of domestic violence or sexual harassment by stating what conduct the alleged offender must refrain from doing. As long as he/she complies with the protection order, the complainant will be safe. If the respondent contravenes any stipulation of the protection order, he/she may be arrested. Once a protection order is granted, it is enforceable throughout the country.

THE PROCEDURE TO APPLY FOR A PROTECTION ORDER IS AS FOLLOWS:

(1) The complainant must make an affidavit and complete an application form at a police station. Please read the document “Notice to complainant in a case of domestic violence” (J645E) before completing the application form. This explains your rights and the steps you may take to protect yourself, your children and other members of the shared household.

(2) Supporting affidavits by persons who have knowledge of the matter in question, may accompany the application.

(3) These documents must be handed to the clerk of the nearest court. The court will consider the application immediately.

(4) The application for a protection order is not limited to the complainant. An application for a protection order may be brought on behalf of the complainant by any other person who has an interest in the well-being of the complainant. This includes a counsellor, a health service provider, a social worker, a teacher or a member of the SAPS.
If the court is satisfied that there is sufficient evidencethat the suspect is committing or has committed an act of domestic violence/harassment and unnecessary hardship may be suffered by the complainant as a result of the act, the court will issue an interim protection order against the respondent.

(5) The application for an interim protection order may be brought at any time and not only during office hours or on court days.

(6) The purpose of this interim protection order is to provide immediate protection to the complainant.

(8) The interim protection order has no force or effect until it has been served on the respondent.

(9) The court is also required to issue a suspended warrant of arrest for the respondent. A breach of the protection order requires that the respondent must be arrested by the police immediately.

(10) The interim protection order is not a final order from the court, but a temporary order which grants immediate relief until the return date (the date on which the applicant and the respondent, after being given due notice, are to appear before court to have the protection order made a final order). On this return date, the respondent is afforded the opportunity to present to the court reasons why the protection order should not be made final.

(11) If the respondent does not appear in court on the return date, but the court is satisfied that proper notice has been given to the respondent and that there is sufficient evidence that the respondent has committed or is committing an act of domestic violence/sexual harassment, the court may make a final order on the return date.

THE PROTECTION ORDER WILL PREVENT THE RESPONDENT FROM –

(1) committing any specified act of domestic violence/sexual harassment
(2) entering the joint residence or entering a specific part of the residence
(3) entering the victim’s residence if they are not living together
(4) entering the victim’s place of employment/office
(5) having contact with a child or children, if it is in the best interest of the child.

If a protection order has been obtained, the respondent cannot prevent the victim or a child who usually lives at the shared residence, from entering or remaining in the shared residence or any part of it.

When applying for a protection order, the complainant may request for the removal of the respondent’s firearm or other dangerous weapon. If the Magistrate orders the police to remove the firearm, the police will keep the firearm until the case has been finalized. The firearm can only be returned to the respondent by order of the court, and the court may add conditions. The court may also order the State to keep the firearm if it is in the best interest of the victim’s safety.

It is important to remember that criminal charges may be laid in cases where acts of domestic violence/sexual harassment constitute an offence, such as assault or rape. It does not mean that one must first exhaust the remedies available under the protection order before laying the criminal charges, if this offence was committed. One can register the criminal charge with or without a protection order.

The court may order a police officer to accompany a complainant to retrieve his/her property from a specified place to ensure the safety of the complainant.

IMPORTANT: If one disobeys the protection order, it must be reported to the police immediately with the copy of the protection order so that the respondent can be arrested and be brought before court. Only the Magistrate may release the arrested person as the Magistrate issues the warrant.

NOTICE TO COMPLAINANT IN A CASE OF DOMESTIC VIOLENCE (J471E) (Section 2(b) of the Domestic Violence Act, No 116 of 1998)
This notice explains your rights and the steps you may take to protect yourself, your children and/or other members of the shared household. If, after reading this notice, there is anything you do not understand I will to the best of my ability explain the contents to you. If I or other members of the South African Police Service present are unable to answer any of your questions regarding this notice, you may contact the clerk of the magistrate’s court for further information.

1. I, as a member of the South African Police Service will render such assistance to you as you may require in the circumstanced including assisting or making arrangements to-
(a) find suitable shelter; and/or
(b) get medical treatment.

2. You may lay a criminal complaint against the person who committed the act of domestic violence (who will now be called the respondent) if the conduct of the respondent constitutes a criminal offence which will be investigated by the police.

3. In addition, you may apply, on day and at any time, for a protection order at the Magistrate’s Court in whose area-
(a) you reside, carry on business or are employed, permanently or temporary;
(b) the respondent resides, carries on business or is employed; or
(c) the act of domestic violence occurred.

4. I, will provide you with an application form if you want to apply for such an order. It is not necessary to lay a criminal charge in order to obtain a protection order.

5. The court will consider your application and may thereafter issue a temporary order which will only come into effect-
(a) after it has been delivered to the respondent (the cost of which you have to pay unless you do not have the means to pay therefore); and
(b) will be valid for a certain period of time

6. After such period of time the court will consider to issue a permanent order.

7. In your application you may request the court to prohibit the respondent from-
(a) committing any act of domestic violence;
(b) getting the help of another to commit any act of domestic violence;
(c) entering your workplace, home or the shared residence or any part thereof;
(d) preventing you or any child who normally lives in the shared residence from entering or remaining in the residence or any part thereof;
(e) committing any other act determined by the court.

8. You may request the court not to disclose your physical address to the respondent. The court may also, in order to protect you and to provide for your safety, health and wellbeing –
(a)order that the respondent pay rent, mortgage or other monetary relief (such as medical expenses and loss of income);
(b) refuse the respondent contact with your children;
(c) order the seizure of any arm or dangerous weapon in the possession or under the control of the respondent;
(d) order that a peace officer accompany you to assist you with the collection of your personal property;
(e) impose any other condition it deems reasonably necessary.

9. The court will, when an order is made, issue a warrant of arrest for the respondent. This means that the respondent may be arrested if he or she fails to comply with any provision of the protection order and after you have given the police the warrant and an affidavit explaining that the respondent has breached the order.

WARNING: It is a criminal offence if you knowingly give false information when applying for a protection order or when laying a criminal charge, you will be prosecuted and may be convicted.