Domestic violence does not always mean physical abuse. South African law recognises various forms of domestic violence and offers remedies through protection orders issued by a Magistrate’s Court. This article explains who may apply for a protection order, how the application process works, the distinction between interim and final protection orders, and what happens when a protection order is breached.

Domestic Violence Under South African Law
The Domestic Violence Act 116 of 1998 (DVA) recognises various forms of domestic violence, including physical, sexual, emotional, verbal, psychological and economic abuse, as well as intimidation, harassment, stalking, damage to property, coercive behaviour and controlling behaviour.

This means that a person does not necessarily have to experience physical violence before seeking legal protection. Conduct that causes harm, creates fear, or interferes with a person’s safety and well-being may also fall within the scope of the Act.

Applying for a Protection Order
A person experiencing domestic violence may apply for a protection order at a Magistrate’s Court by completing a prescribed application form. The application should describe what happened and explain what type of protection is needed. 

When considering an application, the court may grant an interim protection order where immediate protection is necessary.

Protection While the Court Decides
An interim protection order provides temporary protection while the application for a final protection order is being considered by the court. Where the requirements of the Act are satisfied, the court may grant the interim order without first allowing the respondent to be heard.

This is particularly important where notifying the respondent before granting protection could place the complainant at further risk of harm. However, an interim protection order does not automatically become a final protection order. Once granted, it must be served on the respondent before it can take effect.

The order will include a return date, which allows the respondent to appear in court and explain why a final protection order should not be granted. Service of the protection order may be carried out by the police or a sheriff.

When the Court Makes a Final Order
At the return hearing, the court considers the evidence before it. If the respondent opposes the application, the court may consider further affidavits or oral evidence. If the court finds, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence, it must issue a final protection order.

If the respondent does not attend court after proper service, the court may still issue a final protection order if the requirements of the Act have been satisfied.

A final protection order may prohibit the respondent from committing or attempting to commit acts of domestic violence. Depending on the circumstances, the court may also prohibit the respondent from contacting or approaching the complainant, or from involving another person in committing an act of domestic violence.

The complainant may also request additional conditions that are reasonably necessary to provide protection.

What Happens If a Protection Order Is Breached?
A protection order is supported by a warrant of arrest. When the court grants an interim or final protection order, it must authorise a warrant of arrest for the respondent. However, the warrant remains suspended unless the respondent breaches the protection order.

If the respondent contravenes the protection order, the complainant may report the breach to the police and provide a copy of the protection order together with an affidavit explaining the alleged breach. The police may then take the appropriate action, including arrest where the legal requirements are met.

Protection Orders vs Criminal Charges 
It is important to understand that a protection order and criminal proceedings are separate. Conduct that amounts to domestic violence may also constitute a criminal offence, and the complainant may report that conduct to the South African Police Service. 

A protection order is intended to protect against further domestic violence. It can operate alongside criminal proceedings where the conduct also amounts to a criminal offence.

Balancing Protection and Procedural Fairness
The distinction between interim and final protection orders is important. An interim order provides urgent protection while the matter progresses, while a final protection order follows an opportunity for the respondent to be heard.

The process aims to provide effective protection to victims of domestic violence while maintaining procedural fairness for all parties involved.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.