Domestic Abuse in Relationships

The Protection Order

A protection order, also called a restraining order or domestic violence interdict, is a court order that tells an abuser to stop the abuse and sets certain conditions preventing the abuser from harassing or abusing the victim again. It may also help ensure that the abuser continues to pay rent or a bond or interim maintenance. The protection order may also prevent the abuser from getting help from any other person to commit abusive acts.

There are no costs involved in applying for a protection order, unless an attorney is used. When legal representation is involved, each party usually bears his/her own costs, unless one party acted fictitiously or unreasonably, in which event a court may make a cost order against that party.

The victim can apply at the court on any day of the week, but for after-hour applications they must go to the police station and the police will then contact a magistrate or clerk, however, not all courts work the same way. Some only handle protection order applications on certain days, and at certain times.

Once a protection order is granted, it is valid until the victim withdraws it. If the perpetrator lodges an appeal, the order will continue to operate until it is cancelled by the appeal court.

Victims also have the right to bring a criminal charge against their abusers in addition to obtaining a protection order if the act of domestic violence contained an element of violence, because this is a criminal offence. Victims may also get a court order to have the perpetrator’s gun removed, if applicable. Other remedies are available, depending on the exact nature of the abuse.

Who qualifies for protection under the Act?

Any person who is/was subjected to domestic violence may apply for a protection order if the victim is/was in a domestic relationship with the perpetrator. The victim is called the complainant and the perpetrator the respondent. A relationship between a complainant and a respondent is classified a ‘domestic relationship’ when:

• they are/were married to each other according to any custom, religion or law;
• they live/have lived together in a relationship that is/was like a marriage;
• the respondent perceives (believes) that there is/was a relationship, even if the complainant does/did not. As long as the respondent acts as if there is a relationship, that will be enough for the courts to grant a protection order;
• they are the parents of a child. They need not have had the parental responsibility at the same time;
• they are family members related by blood, affinity or adoption. This means that the respondent can be the complainant’s mother, father, grandmother, grandfather, child, brother, sister, aunt, uncle, cousin, etc. It would be absurd, however, to conclude that because the parties are, for example, siblings they share a domestic relationship as envisaged by the Act. They must be sharing a common household, living in one house under one head.
• the respondent is a blood relation of the complainant’s partner or ex-partner by ‘marriage’ (in-laws), i.e. anybody related by blood to the complainant’s partner through a civil, customary or religious marriage;
• they are/were engaged to be married, dating or in a customary relationship. This includes an actual or perceived romantic, intimate or sexual relationship of any duration; or
•  they share/recently shared the same residence, i.e. lived in the same household.

The Act also states that a minor or any person on the minor’s behalf may apply for a protection order. In the case of a minor, the consent of the minor’s parent or guardian is not needed. Furthermore, any child who is in the care of a complainant will be included as a complainant in the protection order.

Interim protection order

The magistrate will first grant an interim protection order and the respondent will be given a date to appear in court to give reasons why the order should not be made final.

In the meantime, the interim protection may prohibit the respondent from engaging in the following conduct:

• Committing acts of domestic violence.
• Enlisting another person’s help to commit acts of domestic violence.
• Entering a shared residence or a specified part thereof if this is in the complainant’s best interests.
• Abusing the complainant financially. The order may stipulate that the respondent pay emergency monetary relief to the complainant, such as maintenance, and rental or bond payments.
• Entering the complainant’s residence. Where the respondent is banned from entering a certain premises, the court will omit the complainant’s address in order to guarantee the complainant’s safety or wellbeing.
• Preventing the complainant who ordinarily lives/lived in the shared residence from entering or remaining in the residence or a specified part thereof.
• Committing any other act specified in the order.