Protection Orders 101 – Crawford Legal

In South Africa, the morbid reality is that almost every person has, at some point, felt threatened or unsafe. Should it not be true in your instance, chances are that you know someone who has been in that situation who could benefit from this knowledge.

The South Africa Demographic and Health Survey, 2016, found that approximately one in every five women have experienced a form of violence at the hands of a romantic partner, increasing to two out of every five in the case of divorcees. In a population with over 30 million women as at Mid 2020, it is much more common than you may think.

We’ll give you a brief background of the legal framework and processes, which may just be what you needed to read.

What can be done about it?

Various options exist for those finding themselves in a threatening, violent or otherwise abusive situation, for the purposes hereof we will deal with some of the more common legal remedies.

Criminal Charges

In some instances, where there is assault or damage to property, criminal charges may be laid at the Police Station in the area in which the victim resides. A statement is made, a docket opened for investigation and when there is sufficient evidence it is presented to a control prosecutor who decides whether the matter will proceed, and if so whether it is ready to proceed. A warrant of arrest is then obtained by the prosecutor and an arrest made. The court processes will then follow. It may take a few weeks before a decision is made and an arrest can take place, unless a dangerous wound has been inflicted in which case an immediate arrest without a warrant of arrest may be effected.

The results of this process, after lengthy proceedings, vary from diversion to direct imprisonment in more serious cases, however this is quite rare.

A prohibitory interdict or “restraining order”

Often times you may hear someone refer to getting a “restraining order”, this is attributable largely to US television.

What is being referred to in our South African context is a prohibitory interdict, which takes the form of a High Court Order prohibiting a party from participating in certain, specified conduct.

This is generally used where the conduct infringes the victim’s (referred to as the Applicant) rights, but in such a manner that it may not amount to criminal conduct, and often times does not fall strictly within the grounds provided for in either the Protection from Harassment Act or Domestic Violence Act discussed herein. Whilst the general rule, as set out in Akoo and Others v Master of The High Court and Others (5612/11) [2012] ZAKZPHC 45 (31 July 2012) is that for an interdict to be granted there must be a clear right, an injury actually committed or apprehended, and no other satisfactory remedy available to the Applicant, the High Court has inherent jurisdiction to afford protection to an individual where the need is properly demonstrated in the papers.

A breach of such an order may ultimately lead to a finding of being in contempt of court, with punishment ranging from punitive fines, to community service and in extreme instances even sentencing to a custodial sentence (imprisonment) together with such conditions as the Court may elect to impose in order to ensure the order is adhered to.

Whilst there will always be instances where this process is advised, such as the instances outlined above or when the Respondent has left the country and urgent action needs to be taken against him/her, it is somewhat a rarity due to the expenses often associated with proceedings in the High Court. The remedies following below are more widely used.

The Domestic Violence Act 116 of 1998

The Domestic Violence Act aims to create accessible access to protection orders through the Magistrate’s Courts, and together with the Harassment Act is the most used method of obtaining protection.

In terms of this act conduct between parties with a Domestic Relationship, past or present is dealt with. This includes amongst others parties who are related, who are or were in a relationship and parties who do or have lived together in the past. There is no limitation placed on how recently the situation must have existed or ceased to exist.

Domestic Violence is defined broadly in the Act, and comprises of:

“(a) physical abuse;

(b) sexual 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 behaviour towards a complainant,

where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.”

Whilst the Domestic Violence Act does not specifically mention “or a related person”, it does cater for “affected persons” and our Courts will consider the interests of other persons who are affected by the Domestic Violence, be it directly or indirectly, as long as there is a sufficiently close link between the Act of Domestic Violence and the effect on such a party. The Act also makes provision for an Application to be made on behalf of another person, by any person with a material interest in the wellbeing of another. This occurs where such a party is unable to make an application themselves . Written consent to this effect is required, except in the following instances:

Where the Complainant is a minor;
Where the Complainant is unconscious;
Where the Complainant is a mentally retarded;
Where the Court is satisfied that the Complainant is a person who is unable to give such written consent.

This allows medical practitioners, teachers, religious leaders, community leaders, psychologists, employers etc to intervene in instances where there is reason to believe Domestic Violence is occurring.

The Application is brought, and should the Court find that on a balance of probabilities there is or have been acts of Domestic Violence, the Court will order a Protection Order and Suspended Warrant of Arrest for the Respondent, allowing the SAPS to immediately act, by arresting, on a legitimate complaint of breach of the Protection Order.

Section 7 of the Domestic Violence Act provides that in such a case a Court may Order that a Respondent is prohibited from:

Committing any act of Domestic Violence.
Enlisting the help of another person to commit Domestic Violence.
Entering a shared residence, where in the Complainant’s best interests.
Entering a specified part of the shared residence.
Entering the Complainant’s residence when it is not a shared residence.
Entering the Complainant’s place of work.
Any conduct by the Respondent preventing the Complainant from entering the shared residence or any specified part thereof.
Committing any specified act which is stated in the order.

The Court my further:

Order that dangerous weapons be seized.
Order a Peace Officer (Police or similar) to accompany the Complainant to give effect to the arrangements.
Order the Respondent to pay certain sums of money as emergency monetary relief or contribute to certain expenses, having regard to the financial needs and resources of both parties.

The Protection from Harassment Act 17 of 2011

This act, commonly referred to as “The Harassment Act” recognised that detrimental conduct often occurs between parties who are not in any form of domestic relationship, and in line with foreign jurisdictions such as the UK and certain states in the USA, this act was developed.

The Harassment Act defines Harassment as being:

“” harassment” means directly or indirectly engaging in conduct that the 5
respondent knows or ought to know-

( a) causes harm or inspires the reasonable belief that hann may be caused to the
complainant or a related person by unreasonably-

(i) following. watching. pursuing or accosting of the complainant or a
related person, or loitering outside of or near the building or place where 10
the complainant or a related person resides, works, carries on business,
studies or happens to be;

(ii) engaging in verbal, electronic or any other communication aimed at the
complainant or a related person, by any means, whether or not
conversation ensues; or

(iii) sending, delivering or causing the delivery of letters, telegrams,
packages, facsimiles, electronic mail or other objects to the complainant
or a related person or leaving them where they will be found by, given to.
or brought to the attention of, the complainant or a related person; or

(b) amounts to sexual harassment of the complainant or a related person.”

Sexual Harassment in turn is defined as:

“( a) unwelcome sexual attention from a person who knows or ought reasonably to
know that such attention is unwelcome;

(b) unwelcome explicit or implicit behaviour, suggestions, messages or remarks
of a sexual nature that have the effect of offending, intimidating or humiliating
the complainant or a related person in circumstances, which a reasonable
person having regard to all the circumstances would have anticipated that the
complainant or related person would be offended, humiliated or intimidated;

(d) implied or expressed threat of reprisal or actual reprisal for refusal to comply
with a sexually oriented request”

The “harm” which is referred to in the Harassment Act refers to physical, psychological, economic or mental harm, and thus covers a wide range of scenarios. A few examples of conduct amounting to Harassment could be:

Telling a person they are dumb or incompetent repeatedly in a manner causing their dignity to be impaired.
Swearing at a person with the aim of inducing fear or anger at the other person.
Peeping or repetitive invasions of privacy.
Threatening physical harm directly or through other persons.
Withholding money or contributions to expenses as a punishment.
Stalking or watching repeatedly.

What is important to note in Harassment cases, is that it generally, but not always, requires a course of conduct or repetition. This is so that the Court may be satisfied that it would be reasonable to believe harm has occurred or will occur to the Complainant. This would be the case where a party is sworn at or derogatory comments made about a person.

In some instances a single act can also be sufficient. Examples of this would be a single act of stalking taking place over a number of days or , or a threat of harm coupled with some degree of manifestation, such as threatening to burn a person or their property, and then purchasing a fuel can and matches.

Should the Court be satisfied that an act of Harassment has been, or is being committed, the Court may grant an order much the same as outlined above in the case of a Domestic Violence Protection Order. This Protection Order too is accompanied by a suspended warrant of arrest which is sent to your local SAPS for record keeping, the warrant of arrest allows SAPS to arrest on a contravention of the order where imminent harm is likely, alternatively issue a notice to the Respondent to attend Court on a set date to explain why he/she should not be arrested.

Applying for a Domestic Violence or Protection from Harassment Order – Practical Advice

The two processes of applying for a Protection Order, whether in terms of the Domestic Violence Act or Harassment Act are virtually identical, the only difference at the application stage is a slight difference in the forms that are used.

To kick-off the process of getting a Protection Order you will have to attend the Domestic Violence section at the Magistrate’s Court in the area in which you reside or work. In some smaller towns where the Court does not sit regularly, these processes are facilitated by the local SAPS.

You will be required to complete a set of forms with your personal details, the details of the Respondent, and the details of the alleged acts of Domestic Violence or Harassment in a document referred to as a “Form 2” application. The form will state under which Act the application is made, be sure you have the correct form for the type of application you wish to make.

The next crucial thing to remember is that the version you state in this application form will be under oath or affirmatio, and will be the basis of your entire case. Whilst the Magistrate may allow supplementation by oral evidence or affidavit at a later stage, these opportunities are not guaranteed. Any inconsistencies or lack of details in your application may lead to adverse inferences being drawn, and ultimately dismissal of your application.

While this is by no means intended to be an exhaustive list of what you need to state in your application, it is a good starting point to prepare a draft prior to going to Court, covering the following:

What happened? Give details about the events, if you allege verbal abuse, state what was said, the tone, projection etc.
Where did it happen?
When did it take place?
Who was present or involved?
How did you establish the facts you have alleged? Eg. Did you see it personally, is it the only reasonable explanation?
What makes the application urgent? Why do you need relief prior to the hearing date?

You will also need to attach the documents, recordings, witness statements, photographs and other exhibits (where reasonable to do so) to the application form at this stage. Digital materials are often attached by way of a CD or USB drive. We also suggest taking additional paper with should your version extend beyond the space provided in the application.

Once you have completed the application, taken the oath and/or affirmation and signed the application, you will be given a copy of the application containing a hearing date for your own records. The Clerk of the Court will then take the application to the Magistrate who may or may not grant you an interim order, dependant on the nature of the allegations and imminence of harm.

The Clerk then sends the application, notice to the Respondent, and interim protection order if granted, to the local Police Station who will arrange that an appropriate station serves a copy of the application on the Respondent. The papers will give the Respondent the necessary details to be able to respond in writing, and attend Court on the hearing date.

You may be served with the Respondent’s answering affidavit prior to the hearing date which you can use to prepare your case, but this does not often occur. In most cases the next step would be attending Court for the hearing, where the Magistrate will either proceed to hear the matter, either granting or dismissing the application, or to postpone the matter for a variety of reasons, including legal representation, filing of further papers, further investigation of the matter (such as in the case of telephone records having to be obtained), or attendance of witnesses.

These processes have been designed to be user-friendly to address the social ills many of our people face, but often instances arise where the matters become complex and legal assistance will be required properly cross-examine witnesses and argue the matter.

Get in touch Should you require advice or assistance in your matter, or simply feel that you are not emotionally able to deal with the pressures of facing the Court alone.