How to obtain a Protection Order

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Step 1: Gather information and documentation

• Take note of all the occurrences of domestic violence committed against you or your children on paper. Be clear with dates and times.
• Obtain all the relevant details of the person whom you want to be protected against, including his/her home and work addresses, telephone numbers and identity number.
• Ensure you have your identity document.

 
You don’t have to, but it will help if you also have:

• Photos of the physical abuse. If you can, take photos so you can show how you were hurt and give the magistrate a better idea of how you have suffered.
• A photo of the abuser. It can be a photocopy of a photo. This is useful so that the police can recognise the abuser when they serve him/her with the protection order.
• Papers showing who bought the items. If your goods or property were damaged.
• Photos of the violence. If any goods or property were damaged, photos will show the magistrate exactly what was done.
• Confirmation letters confirming the fact that you have been abused. You can get letters from social workers, doctors, etc.
• Statements/affidavits. From people who witnessed the abuse.
• A J88 form completed by a doctor. The J88 form has drawings of the human body on it. After examining you, the doctor marks your injuries (bruises, wounds, etc.) on the drawings. This is powerful evidence for the court. You can obtain a J88 form from your nearest police station. If you have an interim protection order, take that along with you. If the police say they don’t have any J88 forms, ask to speak to the station commissioner. If you still can’t obtain a J88 form, report it to the clerk where you got your protection order. Take the J88 form to a doctor at a hospital or to a district surgeon. The doctor will examine your injuries and fill it out for you. Make two copies of the filled-out J88 form and return one of them to the police station to be put into your file. Keep the other copy.

 
Step 2: Seek assistance

Any member of the SAPS must assist you in every way necessary, including:

• giving you information about your rights;
• explaining the contents of the notice that sets out your rights. This explanation must include the remedies that you have in terms of the Domestic Violence Act and your right to lay a criminal charge, if the act committed has an element of violence;
• finding a safe place for you to stay or helping you make arrangements to find a place; and
• getting you medical treatment if required.

 
The following persons can apply for an interim protection order with your written consent, unless you are a minor, a mentally retarded person, unconscious or if the court is satisfied that you are unable to give the required consent:

• counsellors
• health workers
• police officers
• social workers
• teachers

 
Step 3: Apply for the interim protection order

Every magistrate’s court or High Court is a domestic violence court. To obtain the interim protection order, you need to go to the magistrate’s court in the area where you live or in which the respondent lives or where the abuse took place. Your application for the order will be made by way of a written statement (affidavit), outlining:

• the facts on which the application is based;
• the nature of the order; and
• the name of the police station where you are likely to report any breach of the order.

 
Where the application is brought on your behalf by another person, the affidavit must state:
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• the grounds on which they have a material interest in your wellbeing;
• their occupation and the capacity in which they bring the application;
• your written consent, except in cases as outlined above.

 
Once at the court, the following steps will be taken:
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1. You fill in an application form for a protection order and write out a statement (affidavit) about the abuse.
2. You make a sworn statement to the clerk that what you have written is true and you sign the application form.
3. The clerk signs and stamps your application form, opens a file for you and puts your papers into your file.
4. The clerk gives your file to the magistrate who reads through your application. The magistrate can either:

1. dismiss your application if there is no evidence that domestic violence is taking place;
2. grant an interim (temporary) protection order in your favour, to be finalised on a date provided by the court where the respondent will have a chance to give his/her side of the story; or
3. postpone the matter without granting an interim protection order and provide a date when the respondent will get a chance to give his/her side of the story.

 
Step 4: Serve the interim protection order

If the magistrate grants you an interim protection order, the following will happen:

1. The clerk notifies you of the return date, when you will need to go back to court, and gives you a case number.
2. The magistrate then issues a notice to appear in court and the respondent is informed that an application for an interim protection order was granted and that he/she must appear on the return date to give his/her side of the story.
3. The clerk files the original application and interim protection order forms into your file and hands you three copies. Two of the copies are for the sheriff or the police, depending on who will serve the interim protection order on the respondent. The clerk will also give you a return of service form to take to the police or sheriff.
4. You get the police or sheriff to serve the interim protection order. Please note that when the police serve the order it is done at no charge, however, when the sheriff serves the order, you will have to pay.
5. The police or sheriff visits the address that you have put on your form and serves a copy of the interim protection order on the respondent. It is crucial that the respondent is informed personally of the application and return date.
6. The police or sheriff fills in the return of service form and returns it to the court when the interim protection order has been served on the respondent.

 
It is important to note that an interim protection order has no force until it is served on the respondent. Once the interim protection order is granted and served on the respondent, you will be able to have the respondent arrested if he/she disobeys it. Breaching any of the conditions set out in the order can result in the respondent receiving either a fine or a prison sentence, or both.
When the court grants an interim protection order, it simultaneously issues a warrant of arrest against the respondent. The warrant of arrest is suspended subject to compliance with any condition, prohibition or obligation in terms of the interim protection order.
 
Step 5: Make the order final

If the respondent does not appear in court on the day of the hearing, the protection order will be made final. If the respondent does appear, the court will hear evidence from you, the respondent and any other witnesses that may have been called. The court will then consider all the evidence put before it in order to make a decision.

In terms of the Domestic Violence Act, these proceedings are held in private. The only people that may be present are the parties involved, their legal representatives, anyone who has brought an application on your behalf, witnesses and the officers of court. You may also bring three people to provide you with support. The court has the power to exclude anyone from the proceedings. The Act also prohibits the publication of any information that may directly or indirectly reveal the identity of any party to the proceedings. When the magistrate has heard all the evidence, he/she will decide whether or not to issue the protection order.

THE NEW DOMESTIC VIOLANCE ACT 

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