Frequently Asked Questions About Protection Orders
For how long is a protection order valid?
Protection orders, once granted, never expire.
May a protection order be varied, withdrawn or set aside?
A protection order may be varied, withdrawn or set aside if the complainant makes an application for variation or rescission, but only if the court is satisfied that the application is being made freely and voluntarily.
If you want to withdraw your application for an interim protection order or have a final protection order cancelled you must apply to the court in a written affidavit. The court will consider the application but is not obliged to withdraw the protection order. The court may refuse to withdraw if it believes that you or your children require protection. The magistrate makes the final decision about the withdrawal and not the clerk of the court.
Once withdrawn, can one re-apply?
You can re-apply for a protection order as many times as you want, but don’t waste the court’s time by applying for a protection order when no grounds exist.
Can the respondent have the protection order set aside?
The respondent can apply to have the interim protection order set aside. The respondent may also anticipate the date of the court hearing on 24-hours’ notice. What this means is that a respondent can serve a notice on the complainant that the matter be argued earlier than the date set to make the protection order final. A notice will then be served on the complainant in the same way that the interim protection order was served on the respondent. The complainant will be given a date and time to appear in court and the magistrate will hear evidence from both sides before deciding whether to make the order final or to set it aside.
What happens when the parties reconcile?
Where a respondent is invited back to the premises by the complainant, the court will find that the complainant has waived reliance and the presence of the respondent is, therefore, no longer unlawful. Where the respondent is prohibited from having contact with the complainant, and the complainant initiates contact, a conviction cannot follow.
Can a protection order be used to prohibit contact with children?
The Domestic Violence Act may not be exploited or manipulated to gain a tactical advantage in divorce litigation and custody battles. The wide definition of domestic violence in the Act makes it easy for a malicious and vindictive complainant to cause an innocent respondent to be arrested. It furthermore renders exploitation and manipulation of the Act by attorneys to gain an unfair advantage over their opponents in divorce matters. There is an exacting duty of care on legal representatives representing complainants in Domestic Violence Act applications to ensure that the provisions of the Act are not abused to obtain relief ulterior to that for which the Act was intended.
The High Court has the power as upper guardian of all minor children to annul an interim protection order granted in a magistrate’s court in terms of the Act, where it is in the best interests of the children. In one particular case, the custodian parent was using the interim protection order to deny the other parent access to the children in terms of another court order. The court found that it was never the intention of the legislature when enacting the Domestic Violence Act to remove the inherent common law powers of the High Court.
What if there is a change in the way the complainant is being abused?
On receiving a protection order, the respondent may realise that he/she cannot abuse the complainant in the ways described in the order, so may resort to abusing in other ways. If this happens, the complainant has to go back to the court to vary the protection order.
Can a court award legal costs in a domestic violence application against a party?
In terms of the Act, a court may only make an order as to costs against any party if it is satisfied that such party has acted frivolously, vexatiously or unreasonably.
Can a respondent claim damages in respect of malicious institution of proceedings against him/her in terms of the Act?
Yes, a court may award damages sustained by a respondent. The malicious institution of proceedings intrinsically impacts injuriously on a respondent’s dignity in the broad sense. If applicant complainant makes defamatory untrue statements in an application for domestic violence, he/she may be sued for defamation.
Domestic violence and the police
The SAPS has certain obligations to victims of domestic violence. Besides their legal duty to assist victims to take steps to protect themselves in terms of the Act, the police must:
On receipt of a domestic violence complaint, wide-ranging duties are imposed on both the station commander and the officer receiving the complaint. These include the duty to investigate the complaint and to collate all information in connection with it. The responding officer has a duty to render general assistance to the complainant, and specifically, where a complaint is made, to open a docket and to register it for investigation or, where no complaint is made, to assist the complainant to make such a complaint. This assistance must be recorded in the occurrence book and in the officer’s pocketbook. A notice, attached as Form 1 to the regulations, must be handed to the complainant in the language of his/her choice. This notice details the complainant’s right to lay a charge or to apply for a protection order or both.
The complainant must be advised on the options available to him/her in terms of the Domestic Violence Act. This includes informing the victim that it is not necessary to lay a charge before applying for a protection order. The difference between the two must be explained: a charge is aimed at securing a conviction whereas the purpose of a protection order is to prevent future misconduct.
Failure to assist
Should a police officer fail to adequately advise the victim, the victim can report the matter to the station commander at the relevant police station. The complaint will be noted in a complaints register, stating the name of the officer concerned, the date on which the complaint is lodged, and the details of the complaint. The station commander will take disciplinary steps against the officer involved, and the SAPS will refer the complaint to the Independent Complaints Directorate (ICD) for their recommendations. If you are not satisfied with the way in which a station commander is dealing with your complaint, you may personally report the matter to the ICD.
Claiming damages from the police
In a number of cases, victims of domestic abuse have successfully sued the Minister of Safety and Security for damages based on the police’s failure to perform their legal duty to assist victims to protect themselves under the Act.
The Act and the National Instructions on Domestic Violence require the police to advise victims of their rights and to assist them in asserting these rights, where necessary. The Act contains a list of rights and remedies available to victims of domestic violence that is derived from the constitutional duty imposed on the state by the Constitution to protect the right of every citizen to be free from private or domestic violence. The preamble to the Act declares that its objective is to ‘afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide’.
Protection orders, once granted, never expire.
May a protection order be varied, withdrawn or set aside?
A protection order may be varied, withdrawn or set aside if the complainant makes an application for variation or rescission, but only if the court is satisfied that the application is being made freely and voluntarily.
If you want to withdraw your application for an interim protection order or have a final protection order cancelled you must apply to the court in a written affidavit. The court will consider the application but is not obliged to withdraw the protection order. The court may refuse to withdraw if it believes that you or your children require protection. The magistrate makes the final decision about the withdrawal and not the clerk of the court.
Once withdrawn, can one re-apply?
You can re-apply for a protection order as many times as you want, but don’t waste the court’s time by applying for a protection order when no grounds exist.
Can the respondent have the protection order set aside?
The respondent can apply to have the interim protection order set aside. The respondent may also anticipate the date of the court hearing on 24-hours’ notice. What this means is that a respondent can serve a notice on the complainant that the matter be argued earlier than the date set to make the protection order final. A notice will then be served on the complainant in the same way that the interim protection order was served on the respondent. The complainant will be given a date and time to appear in court and the magistrate will hear evidence from both sides before deciding whether to make the order final or to set it aside.
What happens when the parties reconcile?
Where a respondent is invited back to the premises by the complainant, the court will find that the complainant has waived reliance and the presence of the respondent is, therefore, no longer unlawful. Where the respondent is prohibited from having contact with the complainant, and the complainant initiates contact, a conviction cannot follow.
Can a protection order be used to prohibit contact with children?
The Domestic Violence Act may not be exploited or manipulated to gain a tactical advantage in divorce litigation and custody battles. The wide definition of domestic violence in the Act makes it easy for a malicious and vindictive complainant to cause an innocent respondent to be arrested. It furthermore renders exploitation and manipulation of the Act by attorneys to gain an unfair advantage over their opponents in divorce matters. There is an exacting duty of care on legal representatives representing complainants in Domestic Violence Act applications to ensure that the provisions of the Act are not abused to obtain relief ulterior to that for which the Act was intended.
The High Court has the power as upper guardian of all minor children to annul an interim protection order granted in a magistrate’s court in terms of the Act, where it is in the best interests of the children. In one particular case, the custodian parent was using the interim protection order to deny the other parent access to the children in terms of another court order. The court found that it was never the intention of the legislature when enacting the Domestic Violence Act to remove the inherent common law powers of the High Court.
What if there is a change in the way the complainant is being abused?
On receiving a protection order, the respondent may realise that he/she cannot abuse the complainant in the ways described in the order, so may resort to abusing in other ways. If this happens, the complainant has to go back to the court to vary the protection order.
Can a court award legal costs in a domestic violence application against a party?
In terms of the Act, a court may only make an order as to costs against any party if it is satisfied that such party has acted frivolously, vexatiously or unreasonably.
Can a respondent claim damages in respect of malicious institution of proceedings against him/her in terms of the Act?
Yes, a court may award damages sustained by a respondent. The malicious institution of proceedings intrinsically impacts injuriously on a respondent’s dignity in the broad sense. If applicant complainant makes defamatory untrue statements in an application for domestic violence, he/she may be sued for defamation.
Domestic violence and the police
The SAPS has certain obligations to victims of domestic violence. Besides their legal duty to assist victims to take steps to protect themselves in terms of the Act, the police must:
- provide victims with medical attention;
- provide victims with shelter;
- provide victims with counselling;
- ensure that a medical officer collects and records any medical evidence in support of a criminal charge; and
- accompany the victim home to collect personal belongings, if this is provided for in a protection order.
On receipt of a domestic violence complaint, wide-ranging duties are imposed on both the station commander and the officer receiving the complaint. These include the duty to investigate the complaint and to collate all information in connection with it. The responding officer has a duty to render general assistance to the complainant, and specifically, where a complaint is made, to open a docket and to register it for investigation or, where no complaint is made, to assist the complainant to make such a complaint. This assistance must be recorded in the occurrence book and in the officer’s pocketbook. A notice, attached as Form 1 to the regulations, must be handed to the complainant in the language of his/her choice. This notice details the complainant’s right to lay a charge or to apply for a protection order or both.
The complainant must be advised on the options available to him/her in terms of the Domestic Violence Act. This includes informing the victim that it is not necessary to lay a charge before applying for a protection order. The difference between the two must be explained: a charge is aimed at securing a conviction whereas the purpose of a protection order is to prevent future misconduct.
Failure to assist
Should a police officer fail to adequately advise the victim, the victim can report the matter to the station commander at the relevant police station. The complaint will be noted in a complaints register, stating the name of the officer concerned, the date on which the complaint is lodged, and the details of the complaint. The station commander will take disciplinary steps against the officer involved, and the SAPS will refer the complaint to the Independent Complaints Directorate (ICD) for their recommendations. If you are not satisfied with the way in which a station commander is dealing with your complaint, you may personally report the matter to the ICD.
Claiming damages from the police
In a number of cases, victims of domestic abuse have successfully sued the Minister of Safety and Security for damages based on the police’s failure to perform their legal duty to assist victims to protect themselves under the Act.
The Act and the National Instructions on Domestic Violence require the police to advise victims of their rights and to assist them in asserting these rights, where necessary. The Act contains a list of rights and remedies available to victims of domestic violence that is derived from the constitutional duty imposed on the state by the Constitution to protect the right of every citizen to be free from private or domestic violence. The preamble to the Act declares that its objective is to ‘afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide’.
