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Protection Order

Introduction and Definitions

Harassment

Harassment is any conduct (whether it be direct or indirect) that the perpetrator knows or ought to know will cause mental, psychological, physical or economic harm or inspires the reasonable belief on the part of the victim and that harm will be caused to a person (referred to in the Act as the “complainant”) or any member of the family or household of the complainant or any other person in a close relationship with the complainant. The Act refers to any member of the family, household of the complainant or any person in a close relationship with the complainant as a “related person”. Harassment includes:
  • unreasonably following, watching, pursuing or accosting a person (or related person) or loitering outside of or near a building or place where a person (or related person) resides, works, carries on business, studies or happens to be
  • unreasonable verbal, electronic or other communication (regardless of whether or not conversation ensues)
  • unreasonable sending or delivery of letters, telegrams, packages, faxes, email to a person (or related person)
  • sexual harassment
  • Bullying (including cyber bullying)
.

Protection Order

A protection order is a court order granted by the magistrates’ court prohibiting the perpetrator from engaging in or attempting to engage in harassment or enlisting the help of another person to do so. A protection order may contain a list of specific acts which the perpetrator may not commit.

When granting a court order, the court may also order the South African police to seize any weapon in the possession of the perpetrator and/or to accompany you to collect any belongings which you may have identified in the application for the order.

If court is of the view that a criminal act has been committed, it may also require the South African police to investigate with a view to the possible institution of a criminal prosecution.

How serious must the harassment be in order to apply for a protection order?

Although the Act does not specify how serious the conduct must be in order to apply for a protection order, as a general rule South African courts will not concern themselves with minor or frivolous matters. The court will only issue a protection order if it is the perpetrator’s behaviour is unreasonable.

If a person acts frivolously, maliciously or unreasonably when applying for a protection order, the court may order that costs be awarded against that person.

Who may apply for a protection order?

Any person who is the victim of harassment may approach the court for a protection order.

A child may apply for a protection order with or without the assistance of his/her parents or guardian.

You may also apply for a court order our behalf of another person if you have a material interest in the well-being of that person. You will however need the written consent of the person who is the victim of harassment except in circumstances where that person is unable to provide written consent.

Against whom can protection orders be granted?

You can obtain a protection order against any person who perpetrates harassment even if the perpetrator is a child (i.e. a person under the age of 18) who is old enough to appreciate the consequences of his/her actions and who knew or ought to have known that the conduct was harmful.

You do not have to be in any form of a domestic relationship with the perpetrator in order to apply for a protection order.

Children over the age of 14 are legally regarded as being mature enough to understand the difference between right and wrong and can be criminally charged if they committed a criminal act such as breaching a protection order. A court may be reluctant to grant an order against a child under the age of 14 as a child under the age of 14 might not necessarily understand the difference between right and wrong.

If a child is the respondent in an application for a protection order, the child would need to be assisted by his/her parents or guardian.

What if I don’t know who is harassing me?

If you do not know the identity of the person harassing you, you may still apply for a protection order. If the court is satisfied that you are being harassed it may issue a directive directing the South African police to investigate the matter and identify the perpetrator.

If you are being harassed by a person who is using electronic communications such as email, text or telephone or harmful content is being posted on a website, the court may direct the electronic communications service provider concerned to provide details of the perpetrator.

Must I suffer harm before I can apply for a protection order?

No. You may apply for a protection order if you fear that you may be harmed (mentally, psychologically, physically or economically) in future. Your fear that you may suffer harm in future must be reasonable in order for the court to issue an order.

Do I need a lawyer to apply for a protection order?

No. The process for applying for a protection order is intended to be uncomplicated and inexpensive.

The clerks of the court are obliged to explain the procedure to all applicants and are trained to assist applicants and guide them through the process.

Where can I apply for a protection order?

You can apply for a protection order at a magistrates court:
  • in the area where you live;
  • in the area where the harassment occurred; or
  • in the area with the perpetrator lives.
You can download a list of all Magistrate’s Courts in South Africa over here: Magistrate’s Court List

Can a protection order be granted urgently or after hours?

Yes. A clerk of the court and a magistrate will be available to deal with urgent applications.

What happens if I am harassed even after a protection order has been granted?

If the person against whom you have a protection order contravenes that order you may hand the warrant of arrest together with an affidavit to any member of the South African police service.

If it appears to the police officer that you (or a related person) are suffering harm or may suffer imminent harm as a result of the alleged breach of the order he/she must immediately arrest the perpetrator.

If it does not appear to the police officer that you are suffering harm or that you may suffer imminent harm, the perpetrator will be handed a notice to appear in court on a charge of contravening a protection order.

In considering whether or not you are suffering harm or may suffer imminent harm the police officer will take into account the risks to your safety or well-being, the seriousness of the conduct, the length of time since the breach occurred and the nature and extent of harm that you have previously suffered as a result of the actions of the perpetrator.

In addition to reporting the breach of the protection order, you may lay criminal charges if the perpetrator has committed any other crimes.

A person who contravenes a protection order may be held liable on conviction to a fine or imprisonment of a period not exceeding five years. Each instance of breach of the protection order can give rise to a separate charge. If the person has committed other criminal acts in addition to breaching the protection order he or she may face additional fines or a longer period of imprisonment.

Procedure

Step 1 – Applying for an Interim Protection Order

To obtain an Interim Protection Order, you need to visit a Magistrate’s Court. You do not need an attorney or any legal representation. Your application will be made by way of an affidavit (a sworn statement) which will outline the following:
  • the facts on which your application is based;
  • the nature of the Order; and
  • the name of the police station where you are likely to report any breach of the Order.
If the application is being brought on your behalf by someone else then the affidavit should also include:
  • the grounds on which they have a material interest in the matter or in your wellbeing;
  • their occupation and the capacity in which they bring the application;
  • your written consent.

What is the procedure once I get there?

Once at Court you’ll normally do the following.
  • Ask at the front desk for the Clerk of the Court. They will probably point you to the Clerk’s office.
  • When you meet the Clerk, explain that you wish to apply for an Interim Protection Order.
  • The Clerk will provide you with an application form as well as inform you of your rights in terms of the law.
  • Complete the application form and write out a statement (affidavit) detailing the harassment.
  • You’ll then make a sworn statement to the clerk that what you have written is true and then you’ll sign the application.
  • The clerk will sign and stamp your application form and will open a file for you.
  • Your file will then be taken to the Magistrate who will read through your application and statement.
  • The Magistrate will then decide whether:
    1. To dismiss your application (if there is no evidence that harassment is taking place);
    2. To grant an Interim Protection Order in your favour, to be finalised on a date provided by the court
    3. To postpone the matter without granting an Interim Protection Order and provide a date when the respondent must appear in Court
    It is important to note that making a false statement when applying for a protection order is a criminal offence.

    Step 2A- An interim order may be granted

    If you believe that the perpetrator (whose identity is known to you) will attempt to avoid service of your application and if you are suffering harm or may suffer harm if an order is not granted immediately, the court will issue an interim order.

    If you are granted an interim order, the order will be served on the perpetrator by the clerk of the court, a sheriff or peace officer who will be informed of a day (not less than 10 days from the date of the order) when he/she may come to court to give reasons why the interim order should not be made a final order. The perpetrator may however come to court sooner to set aside the interim order if he/she gives you and the court twenty-four hours’ notice.

    If you do not know who is harassing you, the court will, at this stage, direct the police to investigate and, if the harassment has occurred electronically, direct the service provider concerned to provide details of the perpetrator.

    The court may at this stage or at any stage of proceedings subpoena witnesses to come to court together with any documentation or objects that the court regards as being essential for its decision.

    An interim order comes into effect as soon as it is brought to the attention of the perpetrator.

    Step 2B – Service of the application (if interim order isn’t granted)

    Once your application has been submitted to the court and the identity and whereabouts of the perpetrator has been established, the court will direct that certified copies of your application be served on the perpetrator by the clerk of the court, a sheriff or peace officer. The perpetrator will be informed of a date when he/she may come to court and give reasons why a protection order should not be granted.

    Step 3 – Issuing of a protection order and a warrant of arrest

    If the perpetrator does not come to court on the date specified in the notice served on him/her a protection order will be granted if the court is satisfied that there is enough evidence that harassment has occurred.

    If the perpetrator comes to court to oppose the issuing of the protection order a hearing will be held and the court will consider any further affidavits as well as any oral evidence.

    The perpetrator can be prevented from cross-examining you directly during the hearing.

    The court will grant a protection order to you after the hearing if it finds, on a balance of probabilities, that you have been harassed or are being harassed by the person named in your application.

    A warrant of arrest will be issued at the same time as the protection order. The warrant can be executed if the perpetrator breaches the court order.

    You will be given a certified copy of the order and the original warrant of arrest. The clerk of the court will forward certified copies of the order and of the warrant of arrest to the police station of your choice.

    The protection order and the warrant remain in force for a period of five years.

    It is important to note that an Interim Protection Order has no force until it is served on the respondent. Once the Interim Protection Order is granted and served on the respondent, you will be able to have the respondent arrested if he/she disobeys it. Breaching any of the conditions set out in the Order can result in the respondent receiving either a fine or a prison sentence, or both.

    When the court grants an Interim Protection Order, it simultaneously issues a warrant of arrest against the respondent. The warrant of arrest is suspended subject to compliance with any condition, prohibition or obligation in terms of the Interim Protection Order.

    Step 5: Make the Order final

    If the respondent does not appear in court on the day of the hearing, the Protection Order will be made final. If the respondent does appear, the court will hear evidence from you, the respondent and any other witnesses that may have been called. The court will then consider all the evidence put before it in Order to make a decision.

    The court has the power to exclude anyone from the proceedings. The Act also prohibits the publication of any information that may directly or indirectly reveal the identity of any party to the proceedings. When the Magistrate has heard all the evidence, he/she will decide whether or not to issue the Protection Order.