ABC guide on how to obtain a Protection Order

The Steps to follow

The steps to follow to obtain a Protection Order in domestic violence situations are regulated by the Domestic Violence Act 116 of 1998 (hereafter referred to as the act). I strongly suggest that you consult an attorney, advocate or family lawyer should your matter be complicated. Below is a simple A B C guide outlining a few simple steps that a complainant (the person affected by domestic violence) has to follow in order to obtain an interdict (Protection Order) against another person? However, before these steps may be laid down important to know whether you should approach the Domestic Violence Court or the South African Police Services for a Peace Order: Speak to them about it.

Q: What is a Protection Order?

A: In simple terms, a protection order is an order granted by the Domestic Violence Court which prohibits the person whom the order was made against to commit any acts of domestic violence against you. Furthermore, a Court might grant you an interim Protection Order with basically the same effect as a Protection Order which will be finalised later.

Q: Who may approach the Domestic Violence Court?

A: In order to approach the Domestic Violence Court, you have to be a complainant as described by the Act. According to the Act, such a person is someone who is or has been in a domestic relationship with a respondent (the person committing the domestic violence) and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of the complainant. So, therefore, the next question is what is a domestic relationship?

Q: What is a Domestic Relationship?

A: According to the Act, a “domestic relationship” means a relationship between a complainant and a respondent in any of the following ways: (a) They are or were married to each other, including marriage according to any law, custom or religion; (b) They live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; (c) They are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time); (d) They are family members related by consanguinity, affinity or adoption; (e) They are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or (f) They share or recently shared the same residence. Now the last question is, what is domestic violence? Q: What is domestic violence? A: According to the Act, domestic violence” means- (a) Physical abuse; (b) Sexual abuse; (c) Emotional, verbal and psychological abuse; (d) Economic abuse; (e) Intimidation; (f) Harassment; (g) Stalking; (h) Damage to property; (I) entry into the complainant’s residence without consent, where the parties do not share the same residence; or (j) Any other controlling or abusive behavior towards a Complainant. Therefore, if you are experiencing domestic violence, the following simple steps have to be followed in order to get you started:

Step 1

Write on a page all the incidents of domestic violence done to you or to your children on paper. Be very clear with the names of people, dates and times. Take your time as this information you will have to fill onto a form at Court, which is dealt with in step 2 below. Tip: If you fill in the form at Court without first making a draft to work from at your convenience, you might be so nervous at Court and leave out valuable information. Find out all the details of the person whom you want to be protected against domestic violence, e.g. his/her home and work address and identity number, etc.

Step 2

Go to the Domestic Violence Court closest to your area and the Clerk of the Court will give you a form to fill in. The form is referred to as an Application for Protection Order form. Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you therefore have to swear to the correctness of the information under oath and sign. Therefore, do not hide any information from the Court or unduly exaggerate. Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not totally honest, this would not be in your favour.
  • If you require any assistance in filling in the form, the Clerks of the Court would be happy to assist you.
  • Once you have filled in the Application for Protection Order form, return it to the Clerk who will have it commissioned.
  • The Clerk of the Court would then take the completed documents to a Magistrate who would read through it and might want to speak to you as well. The Court will then do one of 3 things:
(a) Dismiss your application if there is no evidence that domestic violence is taking place. (b) Grant you an Interim Protection Order which will be finalized on a date provided by the Court where the Respondent will have a chance to give his / her side of the story; or (c) Postpone the matter without granting an Interim Protection Order and provide a date where the Respondent will get a chance to give his / her side of the story. PLEASE NOTE: An Interim Protection Order has no force and effect until it has been served on the Respondent as in step 3 below. Therefore, do not waste time in getting it served.

Step 3

Now the Respondent has to be informed about the application to Court and the date which both of you have to be back at Court. Depending on the Court, the Clerk of the Court might give you the necessary documents to drop at the Police Station or Sheriff’s Office operating where the Respondent lives or works in order to have it served on the Respondent. Make sure that you receive proof from the officer serving the documents on the Respondent that he has done so.

Hint: The South African Police Services does not charge to serve these documents but the Sheriff does.

If the Respondent commits any acts of domestic violence towards you, report the matter immediately to the Police and if there is no Interim Protection Order in place, go immediately back to the Domestic Violence Court and state your case in order to get one. Go back to Court on the date provided and state your case. If there are grounds, the Court will grant you a Protection Order. If you have a Protection Order against you, it is possible to have it varied or set aside. Consult the Court, your Attorney, Advocate or Family Lawyer in this regard. This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.

 
Posted on by Telelaw

ABC guide on how to obtain a Protection Order

The Steps to follow

The steps to follow to obtain a Protection Order in domestic violence situations are regulated by the Domestic Violence Act 116 of 1998 (hereafter referred to as the act). I strongly suggest that you consult an attorney, advocate or family lawyer should your matter be complicated.

Below is a simple A B C guide outlining a few simple steps that a complainant (the person affected by domestic violence) has to follow in order to obtain an interdict (Protection Order) against another person? However, before these steps may be laid down important to know whether you should approach the Domestic Violence Court or the South African Police Services for a Peace Order: Speak to them about it.

Q: What is a Protection Order?

A: In simple terms, a protection order is an order granted by the Domestic Violence Court which prohibits the person whom the order was made against to commit any acts of domestic violence against you. Furthermore, a Court might grant you an interim Protection Order with basically the same effect as a Protection Order which will be finalised later.

Q: Who may approach the Domestic Violence Court?

A: In order to approach the Domestic Violence Court, you have to be a complainant as described by the Act. According to the Act, such a person is someone who is or has been in a domestic relationship with a respondent (the person committing the domestic violence) and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of the complainant. So, therefore, the next question is what is a domestic relationship?

Q: What is a Domestic Relationship?

A: According to the Act, a “domestic relationship” means a relationship between a complainant and a respondent in any of the following ways:

(a) They are or were married to each other, including marriage according to any law, custom or religion;

(b) They live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other;

(c) They are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time);

(d) They are family members related by consanguinity, affinity or adoption;

(e) They are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

(f) They share or recently shared the same residence. Now the last question is, what is domestic violence?

Q: What is domestic violence?

A: According to the Act, domestic violence” means-

(a) Physical abuse;

(b) Sexual abuse;

(c) Emotional, verbal and psychological abuse;

(d) Economic abuse;

(e) Intimidation;

(f) Harassment;

(g) Stalking;

(h) Damage to property;

(I) entry into the complainant’s residence without consent, where the parties do not share the same residence; or

(j) Any other controlling or abusive behavior towards a

Complainant.

Therefore, if you are experiencing domestic violence, the following simple steps have to be followed in order to get you started:

Step 1

Write on a page all the incidents of domestic violence done to you or to your children on paper. Be very clear with the names of people, dates and times. Take your time as this information you will have to fill onto a form at Court, which is dealt with in step 2 below.

Tip: If you fill in the form at Court without first making a draft to work from at your convenience, you might be so nervous at Court and leave out valuable information.

Find out all the details of the person whom you want to be protected against domestic violence, e.g. his/her home and work address and identity number, etc.

Step 2

Go to the Domestic Violence Court closest to your area and the Clerk of the Court will give you a form to fill in. The form is referred to as an Application for Protection Order form. Use the information you have gathered in Step 1 and fill in the form. The form is in the form of an affidavit and you therefore have to swear to the correctness of the information under oath and sign. Therefore, do not hide any information from the Court or unduly exaggerate.

Caution: If your information is not 100 % correct, you may be cross-examined on such correctness in Court and if it is found that you were not totally honest, this would not be in your favour.

  • If you require any assistance in filling in the form, the Clerks of the Court would be happy to assist you.
  • Once you have filled in the Application for Protection Order form, return it to the Clerk who will have it commissioned.
  • The Clerk of the Court would then take the completed documents to a Magistrate who would read through it and might want to speak to you as well. The Court will then do one of 3 things:

(a) Dismiss your application if there is no evidence that domestic violence is taking place.

(b) Grant you an Interim Protection Order which will be finalized on a date provided by the Court where the Respondent will have a chance to give his / her side of the story; or

(c) Postpone the matter without granting an Interim Protection Order and provide a date where the Respondent will get a chance to give his / her side of the story.

PLEASE NOTE: An Interim Protection Order has no force and effect until it has been served on the Respondent as in step 3 below. Therefore, do not waste time in getting it served.

Step 3

Now the Respondent has to be informed about the application to Court and the date which both of you have to be back at Court. Depending on the Court, the Clerk of the Court might give you the necessary documents to drop at the Police Station or Sheriff’s Office operating where the Respondent lives or works in order to have it served on the Respondent. Make sure that you receive proof from the officer serving the documents on the Respondent that he has done so.

Hint: The South African Police Services does not charge to serve these documents but the Sheriff does.

If the Respondent commits any acts of domestic violence towards you, report the matter immediately to the Police and if there is no Interim Protection Order in place, go immediately back to the Domestic Violence Court and state your case in order to get one.

Go back to Court on the date provided and state your case. If there are grounds, the Court will grant you a Protection Order.

If you have a Protection Order against you, it is possible to have it varied or set aside. Consult the Court, your Attorney, Advocate or Family Lawyer in this regard.

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.

Should you require any other legal services and advice, not related to family law, visit Private Legal.

 

Related Post

Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa

Advocate Muhammad Abduroaf is an advocate of the High Court of South Africa. He has the right of appearance in any Court in South Africa. Other than representing clients in Court in legal matters, he also advises them. Read further to find out more about this exceptional legal eagle. [caption id="attachment_7082" align="alignleft" width="188"]Advocate of the High Court of South Africa Legal Cape Town Advocate Muhammad Abduroaf[/caption]

Early success

Having completed his Masters in Law Degree (LL.M) in 2003, advocate Abduroaf was the same year admitted as an advocate of the High Court of South Africa. In the same year, he further successfully represented his client in the Western Cape High Court, where history was made. This was the case of Petersen v Maintenance Officer Simon’s Town Maintenance Court and Others 2004 2 SA 56 (C) 38. Because of this important case, it is now possible to claim maintenance from paternal grandparents of children born out of wedlock. This was not possible for over 80 years. If it was not for his tenacity and belief in law, his client wouldn’t receive the much-needed child support.

Advocate Abduroaf keeping the momentum

A year later, the young advocate Abduroaf, again made legal history. This was in the case of Soller v Maintenance Magistrate, Wynberg and Others 2006 2 SA 66 (C) 2006 446. In this case, the Western Cape High Court confirmed the extensive powers of the Maintenance Court, which includes interdicting pension funds. A mother struggling to obtain maintenance has an additional option because of this case. Because of the latter two cases, family law has developed constitutionally to the benefit of many.

Advocate Abduroaf’s practices for over 20 (years) years

For over 20 (twenty) years, advocate Abduroaf represented his clients in countless legal matters. These ranged from businesses, commercial, family, to criminal matters. Don’t forget about employment and delictual matters. Advocate Abduroaf fearlessly represented his clients and keeps that work ethic up until this day. You would further find a range of legal articles on the internet written by the advocate. Go ahead and do a simple search.

Attorney Referrals and Direct briefing

Advocate Abduroaf is a Trust Account Advocate. Therefore, he can take on work from attorneys or directly from members of the public. If you want to instruct him, feel free to do so.

Contact Advocate Muhammad Abduroaf

If you wish to contact Advocate Muhammad Abduroaf, feel free to call 0211110090. Follow this link to read more about the advocate.

Articles

View some of the articles written by Advocate Muhammad Abduroaf by clicking on the links:

Child Maintenance

  1. How to Apply for Child Maintenance at Court – Step by Step Guide and Advice
  2. Child Maintenance Question. How much should I pay or contribute as a parent?
  3. Child Support or maintenance claims. Does an unemployed father pay?
  4. Non-compliance with Maintenance Orders — Civil and Criminal Remedies
  5. Tricks and tips on how to win your child maintenance case

Child Custody

  1. The Law Regarding Children – The Children’s Act 38 of 2005
  2. Child born out of wedlock: Mother will not consent to her surname change and to be registered as her biological father. What can I do?
  3. How do I get full custody over my child?
  4. Parental Child Abuse in Custody Cases
  5. Relocate with minor child. Parent Refusing Consent for a Passport
  6. Father being refused contact to his child! What are his rights as a Father?
  7. Father’s Parental Responsibilities and Rights to his Child
  8. Urgent Access to your Children without a Lawyer
  9. Parenting Plans and the Law
  10. What happens in a custody dispute where one parent is mentally ill?
  11. How to win your child custody and access court case – Tips and Tricks
  12. Rights of care, contact and guardianship of grandparents to their grandchildren – What does the law say?

Divorce & Property

  1. How to Change your Matrimonial Property Regime
  2. Do your own Unopposed Divorce. No lawyers needed and its Free.
  3. Parental Rights of Divorced Muslim parents after a Talaq or Faskh
  4. Free Online Divorce Assistance Form – DIY Cape Town South Africa comprising of:

Domestic Violence

  1. I’m in a physically and emotionally abusive relationship. Help from Abuse.
  2. How to make a Domestic Violence Application
 
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[video width="1920" height="1080" mp4="https://www.ourlawyer.co.za/wp-content/uploads/Relocation.mp4"][/video]

Frequently asked questions regarding relocation and consent when it comes to minor children

Relocation – Are you planning on relocating to another country or moving to a different province within South Africa with your minor child? Are you concerned about the issue of consent from the other parent? Below are some frequently asked, and related questions on the topic. We would encourage you to post and answer some of the questions, or just leave a comment. advice-child-maintenance-child-custody-divorce Parents often decide to relocate with their minor children. However, they do not always understand the legal requirements and implications involved. For example, can they just leave the country with the minor child or do they require the other parents’ consent? Furthermore, if consent is required and refused; what are the remedies available to that parent? With regard to the issue of moving from one province to another, unless a court order stipulates otherwise, consent is not required. However, the relocation from one province to another could have an effect on existing parental responsibilities and rights. Under these circumstances, a variation of the court order would be warranted. There are therefore also other issues involved when it comes to relocation. For example, what contact would the other parent who remains in South Africa have to the minor children after relocation? The aforementioned questions and a range of other related questions may be posed and answered below. Feel free to post your question should this blog post not have answered it.

Can I move from South Africa to the United Kingdom with my child without the father’s permission?

If the father has parental responsibilities and rights of guardianship, his consent is required for the relocation to the United Kingdom. For example, if the father and the mother were married, then under those circumstances unless an order of court determines otherwise, the father’s consent is required. If the father was not married to the mother, but in a long term relationship when the child was born, and involved in the child’s life after birth, then his consent under the circumstances would also be required.

What do I do if the father refuses to consent to relocate to Germany?

advice-child-maintenance-child-custody-divorceIf a parent refuses to provide the necessary consent for relocation to another country, in this case, Germany, then the Court must be approached. Basically, you would ask the court to dispense with the requirement of the father’s consent. The court would determine the case based on what is best for the minor children involved.

What type of care and contact would the other parent exercise if I relocate to Saudi Arabia?

In this digital age, there is no reason why a parent cannot have regular contact to his or her child if they live in different countries. Usually, contact would take place via Skype, WhatsApp, FaceTime, or other digital means. Email and other messaging services are also effective. When the children returns for holidays or the parent visits them overseas, then contact should be reasonable. For example, a few days with the non-custodial parent.

May I relocate with my child to Canada or the United States?

advice-child-maintenance-child-custody-divorceYou may relocate with your minor child to Canada, the United States, or to any other country if you have the father’s consent. However, consent is not always required if the father does not have guardianship rights. If you were married to the father or he was involved in the child’s life, by visiting and paying maintenance, then his consent would be required.

My child does not have a passport. Do I require the father’s consent to obtain one?

In terms of the Children’s Act, if a father has parental responsibilities and rights of Guardianship, his consent is required for the minor child’s application for a passport. If the father’s name is on the birth certificate, more than likely the Department of Home Affairs would insist on having his consent.

Can a mother move a child away from the father?

Under normal circumstances, a mother cannot move a child away from the father. However, if it is in the child’s best interest, it will be allowed. It is best to obtain a court order dealing with the parties’ parental responsibilities and rights under the circumstances. Alternatively, a social worker or childcare expert should have advised the mother that that would be in the child’s best interest.

When can a child legally decide which parent to live with?

In South Africa, a child is no longer under the guardianship of a parent when he or she turns 18 (eighteen) years old. Therefore when the child turns 18 (eighteen) years old, he or she can decide where he wants to stay, and with whom he wants to stay. The same applies in the case of the relocation. The father’s consent would not be required should the minor child decide to relocate to another country with a mother. The opposite also applies.

Can I get a passport for my child without the father’s consent?

advice-child-maintenance-child-custody-divorceIn terms of South African law, both guardians’ consent is required for a child applying for a passport. Therefore, if the father is a holder of guardianship, his consent is required. The Department of Home Affairs may insist on the father being present at their offices to give consent.

Can I move with my child without the father’s permission?

If you wish to move to a different province or to a different city within South Africa; technically you do not require the father’s permission unless there is a Court Order stating that you require his consent.

Can I change my child’s last name without the father’s consent?

The Department of Home Affairs would require both parents’ consent. If the child has the father’s surname, you would definitely require the father’s consent. If the mother remarried and wants the child to have the surname of the step-father, and the child currently has a mother’s maiden surname, then in those circumstances the Department of Home Affairs might decide not to persist with the father’s consent if he cannot be found.

Can a mother take a child out of the country without the father’s permission?

This depends on whether or not the father has guardianship rights over the minor child. If the father has guardianship rights over the minor child then, he would require the mother’s consent. Furthermore, the Department of Home Affairs would require the father’s consent before the child may leave the Republic of South Africa if the father has guardianship rights.

Can I take my child overseas without the child’s father’s permission?

If the father has rights of guardianship over the child then you require his permission to take the child out of the Republic of South Africa. This applies whether or not you intend to relocate to another country or you would like to take the child away on a holiday.

Can a mother move a child away from the father in South Africa?

advice-child-maintenance-child-custody-divorceA parent (in this case the mother) has to always act in the child’s best interest. However, under certain circumstances, the mother may have to move to a different province or to another country. Under those circumstances, the court would look at what is best for the minor child. Should the child remain in the province or in the country with the other parent who cannot care for him or her? Obviously not, unless the situation warrants it. Those are the factors that the court would have to look at.

May grandparents take the minor child abroad?

Yes, a grandparent may take a minor child abroad. However, the grandparent would require the consent of both the minor child’s parents if they are both guardians.

Can I get my child a passport without the father’s consent?

In terms of the Children’s Act, both guardians are required to give consent for the minor child’s application for a passport. Therefore, if the father has guardianship rights over the minor child, then his consent is required.

Can a mother terminate a father’s parental rights when she moves overseas?

advice-child-maintenance-child-custody-divorceA mother cannot terminate a father’s parental rights and responsibilities. Even if she moves overseas, she can’t. Only a court of law can do that. However, it is possible under certain circumstances that the father does not have parental responsibilities and rights. In those cases, he can acquire parental responsibilities and rights if he gets involved in the child’s life.   For business legal services, visit Private Legal.    
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