What Is a Protection Order?
A protection order is an order issued by a court that prohibits or regulates specified conduct by the respondent in order to protect the complainant.
The precise terms of the order depend on the facts of the matter. The court can impose conditions designed to prevent further abuse, harassment or other harmful conduct.
A protection order is therefore not merely a warning. Once it is legally effective, its terms must be complied with and a contravention can have criminal consequences.
Domestic Violence or Harassment?
One of the first questions is which statutory process applies. The answer depends largely on the relationship between the complainant and respondent and the conduct complained of.
Domestic Violence Act
This legislation applies where the required domestic relationship exists between the complainant and respondent.
Protection from Harassment Act
This legislation can provide protection from harassment where the parties are not necessarily in a domestic relationship.
Who Can Apply Under the Domestic Violence Act?
Domestic violence is not confined to violence between married spouses. The concept of a domestic relationship is considerably broader.
Spouses
Protection may be available where the parties are or were married to one another.
Intimate Relationships
Romantic, intimate or sexual relationships can fall within the statutory domestic-relationship framework.
Family Relationships
Domestic violence legislation can also apply in qualifying family relationships.
Parents of a Child
The existence of a shared parental relationship may also bring parties within the scope of the legislation.
What Conduct Can Constitute Domestic Violence?
Domestic violence can take many forms. Some are immediately visible, while others involve patterns of control, intimidation or financial and emotional abuse.
Physical Abuse
Physical violence or conduct causing or threatening physical harm may justify protection.
Sexual Abuse
Sexual abuse within a domestic relationship is recognised as a form of domestic violence.
Emotional or Psychological Abuse
Serious degrading, humiliating, intimidating or controlling conduct may fall within the legislation.
Economic Abuse
Certain forms of financial control and economic abuse may also constitute domestic violence.
Stalking & Harassment
Repeated following, unwanted contact or harassment may justify protective relief.
Damage to Property
Destruction or damage to property can also form part of abusive conduct contemplated by the legislation.
What If the Person Is Not a Partner or Family Member?
Protection is not limited to domestic relationships. The Protection from Harassment Act provides a mechanism for obtaining protection against harassment even where the respondent is not a spouse, former partner or family member.
This can become relevant in matters involving neighbours, acquaintances, colleagues, strangers or other persons where the required domestic relationship does not exist.
Depending on the circumstances, harassment may involve unwanted communication, following, stalking, threatening behaviour or other conduct causing harm or a reasonable fear of harm.
What About WhatsApp, Messages and Social Media?
Abuse and harassment are not confined to conduct that happens face-to-face. Electronic communications can form part of the conduct relied upon in a protection-order application.
Threatening messages, repeated unwanted contact, abusive communications and relevant social-media activity may therefore be important evidence.
Do not immediately delete messages merely because they are upsetting. Where it is safe to do so, preserve screenshots, message histories, voice notes, emails, photographs and other relevant evidence that may assist in establishing the conduct complained of.
How Do You Apply for a Protection Order?
An application is made to the appropriate court. Legal representation is not compulsory, although an attorney can assist with preparing the application, presenting the relevant evidence and dealing with opposed proceedings.
Approach the Appropriate Court
Protection-order applications are generally dealt with through the Magistrates' Court system, subject to the jurisdictional provisions of the applicable legislation.
Complete the Application
The application should explain the relevant relationship, conduct complained of, history of incidents and the protection required from the court.
Provide Supporting Evidence
Relevant messages, photographs, medical evidence, witness statements and other supporting material may strengthen the application where available.
Interim Protection
Where the statutory requirements are satisfied, the court may grant interim protection before the respondent has been heard.
Service on the Respondent
The relevant documents must be served in accordance with the prescribed process so that the respondent is formally notified of the proceedings and the order.
Return Date
The matter returns to court, where the respondent may oppose the granting of final relief and the court determines whether a final protection order should be issued.
What Is an Interim Protection Order?
An interim protection order provides protection before the final determination of the application where the legal requirements for interim relief are met.
This is particularly important because requiring an applicant to wait for an ordinary opposed hearing before obtaining any protection could defeat the purpose of the legislation.
An interim domestic violence protection order becomes enforceable against the respondent once it has been properly served. Obtaining the order and ensuring service are therefore distinct but important steps.
What Can a Protection Order Prohibit?
The terms of a protection order are tailored to the circumstances and the type of protection required.
Further Domestic Violence
The respondent can be prohibited from committing further acts of domestic violence.
Unwanted Communication
Appropriate restrictions may be imposed on contact or communication where necessary for protection.
Residence Restrictions
In appropriate domestic-violence matters, restrictions may be imposed regarding entry into a shared residence or the complainant's residence.
Workplace Protection
The respondent may, where appropriate, be prohibited from entering the complainant's place of employment.
Weapons & Firearms
The legislation contains mechanisms relating to the seizure of weapons in appropriate circumstances.
Protective Conditions
The court may impose further lawful conditions reasonably necessary to protect the complainant, depending on the case.
Can a Domestic Violence Order Include Financial Relief?
In appropriate circumstances, the Domestic Violence Act permits the court to grant forms of emergency monetary relief connected to the domestic violence.
This may become relevant where abusive conduct has created immediate financial consequences, such as particular medical expenses, accommodation-related costs or loss of earnings, depending on the circumstances and statutory requirements.
A protection order is not necessarily limited to telling the respondent to stop particular conduct. The court's powers are intended to provide meaningful protection suited to the circumstances of the complainant.
What If Children Are Involved?
Children may themselves require protection, or the domestic violence may affect arrangements concerning a child.
The legislation contains specific mechanisms relating to children, and a child may in appropriate circumstances apply for protection without requiring the assistance of a parent or guardian.
Where domestic violence affects children, the protection-order proceedings may overlap with broader issues concerning parental responsibilities and rights, care and contact. The child's safety and best interests remain central.
What Evidence Should You Keep?
Protection-order proceedings often involve competing versions of events. Contemporaneous evidence can therefore be extremely important.
Messages & Emails
Preserve relevant WhatsApp messages, SMS messages, emails and other electronic communications.
Photographs
Photographs of injuries, damaged property or other relevant circumstances may assist where applicable.
Medical Records
Where injuries occurred, medical records and reports may provide important supporting evidence.
Chronology of Incidents
Record dates, incidents, witnesses and relevant details while events are still fresh in your memory.
Supporting Evidence
Persons who witnessed incidents or relevant conduct may be able to provide supporting evidence.
Case Information
Keep details of relevant police reports, case numbers or criminal complaints where applicable.
What Happens If a Protection Order Is Breached?
A respondent who contravenes the terms of a protection order may face criminal consequences.
In a domestic-violence matter, the complainant can report the alleged breach to the police and provide the relevant protection order and information concerning the contravention. The police then act in accordance with the applicable statutory procedure.
If the respondent breaches the order, preserve evidence of the breach and report it through the appropriate process. Depending on the circumstances and the assessment made by police, the respondent may be arrested or required to appear before court.
Is a Protection Order the Same as a Criminal Case?
No. Applying for a protection order and laying a criminal charge are distinct legal processes.
Conduct giving rise to a protection-order application may also constitute a criminal offence, such as assault or another offence. Depending on what occurred, a complainant may have both protective and criminal remedies available.
A person does not necessarily have to choose between seeking protection and reporting criminal conduct. The appropriate steps depend on what has happened and the immediate safety concerns involved.
What If the Protection Order Is Opposed?
An interim protection order is not necessarily the end of the proceedings. The respondent is afforded an opportunity to respond and may oppose the granting of a final protection order.
Where the facts are disputed, the court considers the evidence presented and determines whether the requirements for final protection have been established.
Legal representation can be particularly useful in opposed matters involving extensive evidence, factual disputes, cross- allegations or related family-law proceedings.
What If a Protection Order Has Been Brought Against You?
A respondent who receives protection-order documents should read the order carefully and take the proceedings seriously.
An interim order must be complied with while it is in force, irrespective of whether the respondent agrees with the allegations. The return date provides an opportunity to place the respondent's version and relevant evidence before the court.
Disagreeing with a protection order does not entitle a respondent to disregard it. Comply with the terms of the order and use the court process to oppose, vary or seek appropriate relief.
How Can an Attorney Assist?
A person may apply for a protection order without an attorney. However, legal assistance can be valuable where the facts are complicated, the application is opposed or other family-law proceedings are taking place at the same time.
Preparing the Case
An attorney can assist in identifying the relevant facts, relief required and supporting evidence.
Presenting the History
A clear chronology and properly organised supporting evidence can be important in disputed proceedings.
Opposed Proceedings
Legal representation can assist where the respondent opposes the granting of a final protection order.
Responding to an Application
A respondent can obtain advice on the order, evidence, return date and the proper procedure for opposing the relief.
The Bottom Line
Protection orders are intended to provide practical and enforceable legal protection against domestic violence and harassment.
The appropriate application, evidence and relief depend on the relationship between the parties, the nature of the conduct and the protection required.
If you are experiencing domestic violence or harassment, you do not have to wait for the conduct to become more serious before seeking information about the legal remedies available to you.
Protection Orders & Domestic Violence
Danel Campbell Attorneys assists with domestic violence and harassment protection-order matters, including applications, opposed proceedings and advice to respondents who have been served with protection-order documents.
Explore Family Law Services →This article provides general information about protection orders, domestic violence and harassment in South Africa and does not constitute legal advice. The appropriate procedure, available relief and consequences of a protection order depend on the facts of the particular matter and the applicable legislation. If there is an immediate threat to your safety, contact the South African Police Service or appropriate emergency services.