By specifying what actions an alleged offender must not engage in, protection orders prevent domestic violence and any kind of harassment from taking place again. If you breach the protection order, you may be arrested by the police immediately.
Protection orders are enforceable across the country once they are granted.
If it becomes permanent, then so does the open warrant. That means, until the order is lifted, if you violate it, or even if you are accused of violating it, you can be arrested and detained. You will then be prosecuted criminally by the State for the breach of the protection order.
This application can be made at any Magistrate’s Court having jurisdiction over the area:
Once the application has been completed, the Clerk of the Court will submit the application papers to a relevant Magistrate for consideration.
The Magistrate must, in considering the application, be satisfied of the following:
If the Magistrate is satisfied that the requirements have been met, he/she will grant an interim protection order against the Respondent. Where the court is not satisfied, for whatever reason, the court will notify the Complainant and the Respondent to attend court on an allotted date for further enquiry into the matter.
Once the interim order has been granted, the Clerk of the Court will arrange for a copy of the application papers together with a copy of the interim protection order to be served by the Sheriff, or a member of the South African Police Services on the Respondent personally.
The Complainant is responsible for the costs of service unless, at the time of making the application, the Complainant shows to the court’s satisfaction that he /she cannot afford the costs of service.
An interim protection order is temporary in nature. Once granted, a return date will be set by the Magistrate and recorded on the interim protection order where the Respondent will be called to show the court why a final order should not be granted.
The interim protection order is of no force or effect until such time as the order has actually been served on the Respondent. Therefore, please ensure that it is served.
If it is violated a warrant of arrest can be issued against the Respondent.
A protection is very serious – 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.
In all likelihood the police officers serving you with the order would have explained it to you, but read the entire document carefully – where you may not go, and who you may not contact.
If you have received an order, it is crucial to follow the restrictions outlined regarding places you cannot go and people you cannot contact. These details will be clearly stated in the document you have received. If you are unsure about any of the terms, it is best to consult your lawyer before taking any action.
If you do not have a lawyer, it is advisable to hire one. Should you lack the financial resources to do so, you can seek assistance from legal aid. Proceeding without legal representation increases the risk of the order being made permanent.
The order will include a court date, which the police officers who served the order would have informed you about. Attending this court date is essential. Failing to appear may result in the court viewing your absence as a sign of disrespect, which could lead to the order being made permanent. Taking the court’s instructions seriously and attending all scheduled appearances is crucial to protecting your interests.
You are entitled to oppose the order if you choose to do so. Most respondents opt to challenge the order, which involves drafting an answering affidavit. In this document, you must respond to the allegations made against you by the applicant. Given the legal complexity and the potential consequences, it is strongly recommended that you engage legal counsel to assist you with this process.
When preparing your answering affidavit, carefully address each allegation individually. Collect evidence that supports your defense, such as Google Maps history to prove your location at a specific time, or any other objective documentation that challenges the claims made against you.
Sworn statements from eyewitnesses can also strengthen your defense, but be aware that these witnesses may be called to testify if the matter goes to trial. It is important to avoid hearsay evidence, which consists of statements from individuals who were not directly involved in the events. Ensure that each piece of evidence you reference is properly documented, attached as an annexure, and clearly labeled to strengthen your case.
On the court date, you or your lawyer will have the opportunity to present the answering affidavit and supporting evidence to the complainant and the court. The magistrate will then give the applicant a chance to respond with a replying affidavit, in which they may expand on their accusations and provide additional arguments.
The magistrate will typically allow two to three weeks for this process and will schedule a follow-up date for a pre-trial hearing. During this period, you are required to continue complying with the terms of the original order until the court reaches a final decision.
In urgent cases, a protection order appearance date can be moved up if access to a child is denied or the respondent is forced to relocate. The answering affidavit should be prepared quickly, a new date requested, and all parties notified.
At the pre-trial, the magistrate will review the evidence to decide if oral testimony is needed. If so, a new date will be set for witnesses to testify. If not, the case will proceed based on the affidavits. The applicant will argue for a permanent order, while the respondent will seek dismissal. The magistrate will then issue a ruling to either confirm or cancel the order.
