A protection order should be taken very seriously – you could go to prison if you breach the terms of the order. In fact, providing it is not a Notice to Show cause, it means the court has issued a suspended warrant of arrest for you. If you breach the protection order you may be arrested by the police immediately. No Questions asked.
The next step is to read the order. In all likelihood the police officers serving you with the order would have explained it to you, but we highly recommend reading the entire document carefully. Make sure that you understand what it says in regard to where you may not go, and who you may not contact.
Thirdly, follow the order. Do not go to where it says you should not, nor should you speak to whoever it excludes you from talking to. These places and people will be clearly named in the document you have received. If you are not sure, be safe and do not contact them until you have contacted your lawyer.
If you don’t have a lawyer, we strongly recommend you hire one, and if you do not have the finances, we strongly urge you to contact legal aid. If you choose to continue without legal representation, you run even a higher risk of the order being made permanent
The order will have a date for you to appear. That is your court date. The police officers who served the order would have informed you of that date. Do not miss that date as it means that the order against you may become permanent, as the Court could deem your non-attendance as you disrespecting the court and disregarding the seriousness of its processes.
You are of course within your rights not to oppose the order, but generally most respondents choose to oppose it.
Opposing the order is a process that begins with the drafting of a answering affidavit, one in which you respond to the allegations made against you by the applicant. Hiring legal council to do this is important, especially given the potential severity of the repercussions.
When looking to draft your answering affidavit, look carefully at each allegation made against you and address them individually. Try to gather evidence that will exonerate you, put the events in context, or other wise mitigate what has been alleged.
Where possible provide objective evidence, that is, documents that support or challenge a particular allegation. An example would be using your Google maps history to prove your location at a certain date or time.
In addition, you can also supply sworn statements from eyewitnesses to support your defence. However, bear in mind that should the matter progress to trial, these witnesses may be called to testify in court.
Hearsay evidence
Avoid hearsay evidence, that is, evidence from people who were not actually party to the events in question. Again, we have prepared a video explaining this, and the link will be in the description below.
Each piece of evidence you refer to in your answering affidavit should be documented and attached as an annexure, and properly referenced. Again, therefore it is important to have a professional assist you in the drafting and submission of these documents.
On the court date, you or your lawyer will be given a chance to present the answering affidavit and your supporting evidence to the complainant and the court. This will occur at the court stipulated in the original order. The presiding magistrate will then give the applicant the opportunity to supply a replying affidavit, in which they will respond to the answering affidavit. They can also elaborate on the accusations they made against you, and supply supplementary arguments why the order should be made permanent.
Usually the magistrate will allow 2 to 3 weeks for this, and so will set an appropriate date for all parties to return for the “Pre-Trial”. During this time you are required to still adhere to the order.
Notice to Anticipate the Return Date
It is important to note that, in some extreme instances it is possible to have the appearance date moved sooner. These circumstances could be where access to a child has been denied, or where the respondent has been forced to get accommodation due to the restrictions in the order, or when there is sufficient urgent cause. In such cases the answering affidavit should be drafted immediately, a new earlier court date sought from the clerk of the court, and then all parties served.
On the day of the “Pre-Trial”, the magistrate will evaluate the evidence brought before the court to understand the common cause facts, the issues in dispute, the number of witnesses and the number of expert witnesses.
The magistrate will take all the factors into account and will decide if it is necessary to hear oral evidence – having the witnesses testify and be cross examined in court, or if the magistrate is satisfied with the evidence already presented.
If Oral arguments are required, a new court date will be set, witnesses subpoenaed, and testimony given. Once that is complete, the magistrate will then adjourn to consider the matter, and reserve judgement.
If it was not necessary to conduct oral evidence, then that step will be forgone, and the magistrate will adjourn the matter for argument. This means that the parties and or their respective representatives will argue their case on the basis of the affidavits which were submitted.
For the Applicant, their argument will be about why the protection order should be made permanent or final. For the Respondent, their argument will be why the application for a protection order should be set aside.
The magistrate, having weighed the evidence, will then draft a ruling, and send it to all parties. If your application was unsuccessful, the order will be made permanent, or to the discretion of the magistrate. If successful, the order will be removed, and the open warrant against you cancelled.
