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

Child custody appeals from the Children’s Court to the High Court of South Africa

This article deals with an appeal from the Children’s Court to the High Court. I’ve never been one to complain of my legal situation. The father of my daughter, and I have always had a cordial relationship. Until recently, the father of my minor child paid child support, and he would have contact with her regularly. However, what the father has done recently was approach the children’s court and make false allegations that I have been refusing him contact with his minor daughter. This was not to be done, and I could not allow him to continue lying to the court.

Our past relationship before approaching the Children’s Court

To give some context, the father of my minor child and I met 12 years ago. Soon after, I fell pregnant, and my minor child was born. The father was not involved much in the minor child’s life until soon after she was born. He only met the minor child for the first time when she was about seven months old. He saw her at least once a year until she started attending school. At this time, I approached him for child maintenance because he had not been paying adequate child maintenance for the minor child.

Approaching the Maintenance Court and the Children’s Court

We then approached the maintenance court, and the maintenance court ordered that he pay half the minor child’s school fees, place her on his medical aid, and pay a cash contribution towards her daily expenditure. At the same time, we also approached the children’s court, which assisted us in drafting a parenting plan. The father would see the minor child every second weekend from a Friday until late Sunday as well as one evening in the week. We would also share half the school holidays as well as special days. This would include the minor child‘s birthday, Father’s Day, Mother’s Day, and so on.

Father wanting every weekend with teh minor child

All went well regarding visitation until about a year ago. The father said I am limited his contact regarding the minor child. He wanted to have her on weekends with her as well. Me not agreeing to is, according to him, is refusing him contact. I told him that I also need time with the minor child on weekends. I already care for the child during the week. I attend to her homework and all her needs. At least two weekends a month, I require time to go out with her, take her to the beach, maybe watch a movie, and have some fun time together.

Father approaches the Children’s Court for a variation of the Parenting Plan

It is unfair that he should have the minor child every weekend and not take care of her during the week. Furthermore, the care and contact arrangement that is in place was finalised with the children’s court. I was therefore acting in terms of a court order. The father then approached the children’s court, and we had a hearing date. The matter proceeded to the children’s court magistrate, who heard both parties.

Decision of the Children’s Court

At the end of the enquiry, the children’s court made an order that the father may have the minor child in his care for three weekends per month. What the children’s court did not do was ask the minor child what the minor child wanted. Furthermore, it has not appointed a legal representative for the minor child. Lastly, there was no expert recommendation on this matter. For example, the children’s court did not appoint the office of all the family advocates, or are you a social worker to investigate this matter?

Appealing to the High Court regarding the Children’s Court decision

They failed to consider various factors and assistance from other parties that would assist the court in determining the minor child’s best interest. I then sought the assistance of an attorney, who advised me that I would need to appeal the children’s court’s decision. We then requested reasons for the children’s court decision. In short, the children’s court magistrate was of the view that the minor child does not need to spend so much time with me on the weekend, seeing that I am already caring for her during the week.

High Court dealing with the Appeal from the Children’s Court

The matter then proceeded to the High Court. The High Court took issue with the fact that the children’s court had not consulted with the minor child, has not obtained the assistance of the office of all the family advocates or a social worker, nor has the children’s court appointed a legal representative to the minor child to determine what the minor child’s view and wishes are. The High Court ordered that the care and contact arrangement that was in place should remain.

Possitive outcome of the Appeal to the High Court

I was thrilled that I took the matter to the High Court and appealed the children’s court decision. Had I not decided to take the magistrate to the children’s court on appeal, the father of the minor child would’ve had three weekends a month with the minor child and me only one. This, I believe, would have been unfair.

Assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court

Should you require assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court, feel free to connect with the firm of Adv. Muhammad Abduroaf.    

Posted on by Telelaw

Do you require a video legal advice consultation?

Click here and schedule one today!