Protection Orders and Family Violence

Family violence (commonly referred to as 'domestic violence') is a sad reality for many South African families.
Family violence is when one person (the complainant) is being harmed by another person (the respondent) who they share a home or domestic relationship with.

A case of family violence can only be considered when the complainant and respondent are:

  • married in accordance with any law, custom or religion,
  • living together in a cohabitation relationship,
  • share a child,
  • related to each other by blood, marriage or adoption,
  • dating or engaged to each other, or
  • residing in the same home.

Different types of family violence 

There are various forms of family violence and abuse, including the following:

  • Physical abuse - When the complainant is injured by the respondent. This includes punching, kicking, and smacking, as well as using objects (such as a whip or a stick) to cause physical harm to the complainant.
  • Sexual abuse - This is when the complainant is forced to perform sexual acts in favour of the respondent.
  • Psychological and physical abuse - When the complainant is verbally insulted or humiliated by the respondent. This includes calling the complainant names and teasing him or her in public.
  • Economic abuse - When the respondent sells household property or uses money without the complainant's consent, thus causing the complainant to suffer financial damages.
  • Stalking, harassment and intimidation - This is when the respondent repeatedly follows, watches or makes unwanted contact with the complainant.
  • Property damage - When the complainant's property is damaged by the respondent.
  • Trespassing - This is when the respondent enters the home or property of the complainant, without permission. 

If you are the victim of any of the above-mentioned types of abuse, the appropriate, legal solution would be to apply for a protection order.

Protection orders

A protection order (which can also be referred to as a 'restraining order') is a legal document that enumerates the conditions that an abuser as to adhere to, as ordered by the court.

Applying for a protection order

To obtain an interim protection order, the complainant has to go to the Magistrate's Court in the area where he or she resides, or where the abuse is taking place.

The application will outline the following:

  • The reason for the application
  • The name of the police station where they are most likely to report any breach of the protection order

The clerk of the court will then stamp the application form, and put it in a file create especially for the complainant.
The file will then be handed over to the Magistrate to review. Once the Magistrate has read the file, he or she will either:

  • dismiss the application if there is no evidence of family violence,
  • grant the interim protection order,
  • postpone the case without granting an interim protection order.

Once an interim protection order is granted, the clerk of the court will give the complainant a case number and the date that he or she has to return to court.

The Magistrate will then appoint a Sheriff of the Court to serve the interim protection order on the respondent, while informing them that they have to appear in court on the specified date to tell their side of the story.

An interim protection order will have no effect until it has been served on the respondent. But if the respondent fails to appear in court on the specified date, the interim protection order will be made final.

If the respondent appears in court, the court will hear evidence from both parties, consider all the evidence, then make their decision.

Enforcing a protection order

Once the court grants an interim or final protection order, a warrant of arrest will be issued in favour of the complainant.

If the respondent breaches the conditions of the protection order, the complainant should report him or her to the police, and the respondent will be arrested.

Van Deventer and Van Deventer Incorporated | Family Advocates in Johannesburg

If you are the victim of family violence and abuse, contact Van Deventer and Van Deventer Incorporated for family attorneys who can assist with protecting you and your loved ones.

 

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