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

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Port Nolloth.

Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.

Claiming child maintenance for your child in Port Nolloth

Whether you claim child maintenance in Port Nolloth, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Port Nolloth.

The maintenance scenario – Port Nolloth South Africa

In this article, we will deal with the following fictitious scenario, in a child maintenance matter:

  1. The Child is seven years old and attends school in Port Nolloth
  2. The child is cared for by the mother who works in Port Nolloth
  3. The mother works and earns a Salary of R 10 000
  4. The father sees the child every second weekend. He also lives and works in Port Nolloth
  5. The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
  6. The father earns a reasonable salary and can afford the R 20 000 – 00 per month
  7. The mother claims R 4 000 – 00 maintenance as the father earns double her salary

What is the first step the mother must take in claiming child maintenance?

The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.

How does she start the legal process?

The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Port Nolloth, it would be the maintenance court in Port Nolloth. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.

What do you do while waiting for the maintenance court date?

While you wait to be informed of the court date by the Maintenance Court of Port Nolloth, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.

What happens at the first court appearance at the Port Nolloth Maintenance Court?

Once you have been notified of the maintenance court date by the Port Nolloth Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.

The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.

How does the Maintenance Court hearing or trial work in Port Nolloth?

Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.

At the end of the day, the Port Nolloth Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Port Nolloth Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.

The above child maintenance application principles should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Port Nolloth, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

 

 

 

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I want to relocate with my minor child from South Africa – Do I need consent? Advocate Muhammad Abduroaf

In this video, Advocate Muhammad Abduroaf discusses the issue of consent in relocation of minor children matters. [embed]https://youtu.be/lY-CiIN9WXE[/embed] Family Law with Adv. Muhammad Abduroaf Visit: https://abduroaf.co.za Post your live questions on https://www.facebook.com/AdvMuhammadAbduroaf/live/ Please like the page https://www.facebook.com/AdvMuhammadAbduroaf/ for future live videos and interaction. LIVE Q&A ON FAMILY LAW WITH ADVOCATE MUHAMMAD ABDUROAF Our Lawyer (Pty) Ltd [email protected] 0211110090 Consult with us today. Visit www.ourlawyer.co.za/advice . Child Custody, Child maintenance, Domestic violence, Guardianship rights, Spousal maintenance, Divorces, Unopposed divorces, Opposed divorces, Family Law, Mediation, Family disputes, Relocation of minor children, Minor children passport application consent, Non-compliance with maintenance orders, Reduction of Maintenance Order, Increase of Maintenance Orders, Parenting Plans, Parental Plan, Custody Agreements, Custody Orders, Contempt of Court, Litigation, Antenuptial Contract, Prenuptial Contracts, Wills, Estates, Abuse, Economic Abuse, Gender-based Violence. Attorney legal services, Advocate legal services, Lawyer legal services. Online and telephonic legal advice, Eastern Cape Free State Gauteng KwaZulu-Natal Limpopo Mpumalanga Northern Cape North West Western Cape   Eastern Cape Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha, Port Elizabeth, Queenstown, Uitenhage, Zwelitsha Free State, Bethlehem, Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom, Gauteng Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging, KwaZulu-Natal Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi, Limpopo, Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi Mpumalanga, Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth Western Cape Bellville, Cape Town, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester   Contact us today. #advocate #familylaw #lawyer #attorney #legal #court #child #custody #divorce #relocation #guardianship

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