APPLYING FOR A PROTECTION ORDER

STEP 1
KNOWING WHAT A PROTECTION ORDER IS?

1.1 WHAT IS A PROTECTION ORDER

  • It is a COURT ORDER;
  • Granted by a MAGISTRATE;
  • The PREVENTS the perpetrator form engaging or attempting to engage in HARRASMENT AND/OR DOMESTIC VIOLENCE;
  • Or to USE SOMEONE ELSE to help them to engage therein

1.2 WHAT IS CONSIDERED DOMESTIC VIOLENCE
Where a person is being harmed by another person while they are in a DOMESTIC RELATIONSHIP

A Domestic Relationship is – where the parties are

  • i. Married to each other;
    ii. Living together in a lifelong relationship (Co-Habitation);
    iii. Parents of a child;
    iv. Family member by blood; marriage or adoption;
    v. Dating each other or engaged to each other;
    vi. Staying together in the same home;
    vii. Domestic violence can take any of the forms below:

Physical abuse – being injured by the perpetrator by being punched, kicked or pushed;
Sexual abuse – if the complainant is being forced to perform a sexual act;
Emotional and Psychological abuse – verbal insults or humiliation for example name calling;
Economic abuse – financial damages (where the perpetrator sells household property or uses a joint bank account for personal use without consent);
Property Damage – if the perpetrator damages any property of complainant;
Trespassing – Unlawfully entering complainants home without his/her consent;

STEP 2
HOW TO OBTAIN A PROTECTION ORDER

BEFORE APPLYING FOR A PROTECTION ORDER

2.1 GATHER INFORMATION AND DOCUMENTATION & SEEK ASSISTANCE

  • i. Make notes or everything that happens which is relevant to the applicable domestic violence;
    ii. Obtain relevant details of the perpetrator
    iii. Ensure you have ID documents where available
    iv. Photos of the abuse
    v. A photo of the abuser
    vi. Papers showing who bought the items – if property were damaged
    vii. Photos of the violence – if property were damages
    viii. Statements and affidavits made to the police (in case of physical abuse a J88 (see attached) needs to be completed by the District Surgeon;
    ix. SEEK ASSISTANCE – Approach either the police in the area where you reside; a health worker; social worker or teacher;

 

STEP 3
APPLY FOR A PROTECTION ORDER

2.2 NOTE – Every Magistrate’s Court or High Court also has a domestic violence court
2.3 NOTE 2 – Upon Applying for a Protection Order you will at first only receive an INTERIM PROTECTION ORDER – if you are able to proof to the court that an act described in the Domestic Violence Act (as also set out in paragraph 1.2 has been committed

2.4 THE APPLICATION

HOW CAN A COMPLAINANT APPLY FOR A PROTECTION ORDER

2.4.1 By writing a written statement (affidavit) – this written statement must contain the following:

(i) Facts relating to the domestic violence
(ii) Any evidence which may support this application
(iii) When the domestic violence happened
(iv) Medical reports

2.4.2 Facts on which the application is based (see guidelines attached – (writing a restraining order statement)
2.4.3 Nature of the order sought – example (for the perpetrator to stop with verbal abuse)
2.4.4 The name of the police station where you are likely to report a breach of the order (the police station in the area where you reside)

2.4.5 APPLICATION BROUGHT ON BEHALF OF SOMEONE

i. The grounds on which they have an interest must be outlined, for example a mother bringing the application on behalf of her child, will state that the mother brings the application due to the child being a minor;
ii. Their occupation and capacity in which they are bringing the application
iii. Your written consent, where applicable

STEP 4

2.4.6 ONCE AT COURT – THE FOLLOWING WILL HAPPEN

APPLICATION & OPENING OF A COURT FILE

i. Fill in the application form – J59 (Attached hereto)
ii. Write out statement
iii. Sign the application form
iv. Clerk of the court will sign and stamp the application and will then open a court file – whereupon an application number will be allocated – which will serve as your reference
v. File is then handed to you by the clerk of the court

MAGISTRATE CONSIDERATION OF APPLICATION
vi. You will then be taken to /directed to the Magistrate’s Office
vii. The Magistrate will read through the Application for protection order and your statement
viii. The Magistrate upon considering the Application will either

INTERIM (TEMPORARY) PROTECTION ORDER

(a) Dismiss the Application – on the basis that there is no evidence;
(b) Grant an Interim (Temporary) Protection Order – to be finalized on a further date
(c) Upon the further date the perpetrator will have a right to state his/her version

2.4.7 UPON ISSUING OF INTERIM PROTECTION ORDER

i. Clerk of the Court notifies of the return date – on which date you need to be back in court together with the perpetrator
ii. The Magistrate then issues a NOTICE TO APPEAR and the perpetrator is informed that an application for interim protection order has been granted and he/she needs to appear on the date listed in the Notice to Appear
iii. Clerk files original application and interim protection order forms into the court file
iv. You are handed 3 (three) copies
v. Two of the copies have to be taken to the police or the sheriff of the court
vi. You will also receive a return of service document which has to be completed by the sheriff /police
vii. SERVICE OF INTERIM PROTECTION ORDER – Police will serve at NO COST whereas the SHERIFF will charge you for service and you will have to pay

2.4.8 SERVICE OF THE INTERIM ORDER

(a) An interim order has to be served by the police/sheriff on the perpetrator – to inform the perpetrator to come to court on the further date (indicated on the Interim order)

STEP 5

3. RETURN DATE AND COURT PROCEDURE

(i) Both parties will have an opportunity to state their case
(ii) The court will decide on the facts before it whether the interim protection order is

a. Made final (meaning that the protection order remains in place in accordance with the interim order)
b. Order is rejected (whereas the interim order is cancelled)

ADDITIONAL AND RELEVANT INFORMATION

1. WHAT HAPPENS IF THE INTERIM PROTECTION ORDER IS VIOLATED

The person violating the protection order will be arrested
This will be regarded a criminal matter

2. HOW IS A PERSON ARRESTED UNDER VIOLATION OF A PROTECTION ORDER /HOW CAN A PROTECTION ORDER BE ENFORCED

Upon issuing an interim protection order, the court will simultaneously issue a warrant of arrest against the perpetrator
The warrant of arrest will be suspended subject to compliance with any conditions stipulated in the interim protection order
You will be handed the issue warrant of arrest
Should they perpetrator violate any of the conditions in the interim protection order you may go to the police with the warrant and the order and have the perpetrator arrested

3. HOW CAN A PROTECTION ORDER BE CANCELLED OR CHANGED

The perpetrator may apply to the court to vary or cancel the protection order
Written notice of such application must be given to the court and complainant