Nov 2018 2nd Edition

Your guide to applying for a protection order

Victims of domestic violence often find themselves destitute, scared and alone.

However with a little courage to approach the Magistrates Court for a protection order, the law can protect them. The Department of Justice and Constitutional Development explains what a protection order is and how it protects victims of abuse.

What is a protection order?

It is a written order that is issued by the magistrate’s or family court to stop any person from committing any act of domestic violence against another person with whom he or she has a domestic relationship.

Which court should I apply to for a protection order?

Approach the court nearest to where you live or work. If you were forced to leave your place of residence as a result of the violence and are living elsewhere temporarily, you may approach the court closest to your temporary residence.

What is the process of applying for a protection order?

•  The process of applying for a protection order is to complete an application form, where the complainant is required to set out the reasons why a protection from harassment order is required and to list full details of all incidents of harassment they have experienced.

•  The complainant may also include the specific acts committed by the person causing the harassment to be listed in the protection order, as well as request the court to impose any additional conditions necessary to protect the complainant and provide for the safety and wellbeing of the complainant.

•  The court may, after considering the application from the complainant, issue an interim protection order against the respondent due to the fact that the respondent has not been given notice of the proceedings. The court must, however, be satisfied that there is evidence that the respondent is engaging, or has engaged in harassment.

•  This interim protection order, together with the record of evidence, must be served on the respondent who will be asked to appear in court on a return date.

What happens on the return date?

In the presence of the complainant, the respondent has the opportunity to present his side of the story to the magistrate. The respondent may file an opposing affidavit or request an opportunity to file an opposing affidavit. These papers will be served on you. You will then be given an opportunity to file a reply.

The magistrate will consider the matter and make a decision based on the affidavits which both parties have filed. The magistrate may ask either or both of you for clarification of certain issues. The magistrate may decide to confirm the order, set aside the order or order that oral evidence be heard.

If the respondent fails to appear at the civil hearing and you have the proof that the protection order was served on him (the return of service), the magistrate will make the order final.

If the magistrate is satisfied that the affidavit drawn up by the applicant clearly confirms that abuse has taken place, the magistrate will make the protection order final.

Will there be a formal hearing?

If the magistrate is unable to make a decision on the affidavits presented because of the conflict of facts between your version and the respondent’s version, the magistrate will postpone the matter for a formal hearing.

At the hearing, both parties will be required to give oral evidence under oath and to be cross-examined.

Will the respondent be arrested with the protection order?

The respondent will not be arrested upon service of the protection order. It is only upon a breach of the terms of the order that the respondent may be arrested.

What is a breach of the protection order?

This is when the respondent fails to comply with the terms of the order, for example, when he repeats the abusive behaviour that, according to the protection order served, he has been prohibited from committing. If the respondent breaches the protection order by continuing to physically or verbally abuse you, you may file a complaint at the police station and hand in the warrant of arrest to the police who will then arrest the respondent, when the circumstances so permit.

Can the criminal charges be withdrawn?

Once the respondent has been arrested for a breach of the protection order, the applicant may not decide to withdraw the charges. The senior public prosecutor has the sole discretion to withdraw charges.

Can I set aside the order?

You may, at any time, make an application to have the order set aside. It is however, at the discretion of the magistrate as to whether or not to set aside the order. This will mean that the protection order will be declared null and void. 

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