A step-by-step guide on how to get a protection order

31 August 2020 - 06:00
By Shonisani Tshikalange

The booklet by the department of community safety also helps in defining a domestic relationship and domestic violence (DV) and outlining the rights of a victim of DV and the responsibilities of SAPS, among other things.
Image: 123RF/SEBASTIEN DECORET The booklet by the department of community safety also helps in defining a domestic relationship and domestic violence (DV) and outlining the rights of a victim of DV and the responsibilities of SAPS, among other things.

With the continuing murders and assaults on woman in SA, the Western Cape department of community safety has launched a booklet to assist victims of domestic abuse on how to obtain a protection order.

Community safety minister Albert Fritz said a protection order can be a powerful tool in protecting a person’s life and wellbeing if used properly and under the correct circumstances.

“A protection order is an order issued by a court ordering a person with whom one has or has had a domestic relationship, to stop the abuse. It is important that individuals be empowered with the knowledge of their rights pertaining to DV [domestic violence]. This includes understanding what a protection order is and how they can obtain it.”

Fritz encouraged residents to share the information far and wide to ensure that it reaches those who may need it most.

“Going forward, the department will implement a range of communications devised to share this information further,” Fritz said.

The booklet assists in defining a domestic relationship and domestic violence, outlining the rights of a victim of domestic violence and the responsibilities of SAPS, defining a protection order and how to obtain it, and providing useful contact details on how to access domestic violence and gender-based violence and femicide (GBVF) related services.

Fritz said that in applying for a protection order it was important to distinguish between the applicant and respondent.

“Victims of DV and GBVF should first report the incident to their local police station. The victim must then apply for a protection order at their local magistrate’s court. In doing so, the victim in the application for a protection order becomes the applicant. The alleged perpetrator in the application becomes the respondent.

“It should be noted that an interim protection order can also be issued at any time of the day or night for protection. Alternatively, if the victim does not have a legal representative, the clerk of the court is obliged by law to inform the victim of relief or remedies available in terms of the Domestic Violence Act.” Said Fritz.

Ngaa Murombedzi, advocacy manager at Women and Men Against Child Abuse, said it cost nothing for the application for the protection order.

“If the interim protection order is granted and delivered to the respondent by the police it is free of charge, however if through the sherriff, you will have to pay. A protection order is granted with a suspended warrant of arrest. In the event that the perpetrator violates the terms of the order they will be arrested,” she said.

Murambedzi said it was important for a victim to provide all supporting evidence as  a protection order is granted based on the evidence brought before a magistrate.

She said when approaching a court for a protection order, victims must know that the officer of the law assisting them is under legal obligation to do the following:

  • Give information to the victim about their rights.
  • Explain the contents of the notice (protection order) 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.

Murombedzi said an interim protection order can be applied for by a victim or on behalf of a victim by concerned parties with the written or explicit consent of the victim, unless the victim is a minor, a cognitively impaired individual or unconscious.

“The application on behalf of someone else should explain why the applicant is interested in the wellbeing of the victim as well as their occupation and capacity in which they are making the application. In such a case where someone cannot give consent to have a protection order applied for on their behalf a court has to be satisfied that you absolutely cannot apply for the protection order yourself. The following people can do so: counsellors; health workers; police officers; social workers and teachers,” Murambedzi said.

Step by step guide to obtaining a protection order

Step 1: Report the complaint to a local police station

Step 2: Apply for a protection order at a magistrate's court

Step 3: A magistrate considers the application

Step 4: An interim protection order may be granted and will be served on the respondent

Step 5: Court proceedings or hearing of evidence to determine whether a final protection order should be granted

Step 6: Consequences for the respondent if he/she violates the conditions of a final protection order.

Murambedzi said they have had many cases where protection orders taken out to protect families and children from violence were contravened more than they were adhered to.

“The application of protection for children and victims of domestic violence within our country is sorely lacking and so dismal that often victims of domestic violence are discouraged in opening a case or reporting their ordeal. It is upon the victim to show they need protection — should a respondent not respond to the protection order by way of signing, that protection order is not implemented unless a magistrate sees the situation merits the court to act on behalf of the victim,” she said.

She said reporting domestic violence carries with itself another form of trauma for victims.

“Sometimes the victims have nowhere to go after being granted an interim protection order and it's not uncommon that they go back to the premises where the respondent is. The Domestic Violence Act says the legal officer who notates the affidavit has the responsibility to find a place of safety for the victim. That rarely happens, we see in our work social workers struggle to even place mothers and children who are homeless. The system struggles to find places of safety for children in need of care and protection. The state resources are simply inundated and cannot in many cases take on more victims.”

What can the complainant (victim) do if a police member fails in his/her duties?

  • Should a police officer fail to carry out this commitment, a 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 member concerned, the date on which the complaint is lodged, and the details of the complaint;
  • Should the victim receive no satisfaction it is open to him/her to take the matter further with senior management of the police station;
  • The victim also has the right at any stage to complain about police inefficiency to the Western Cape police ombudsman.

“So the theoretical aspect of a protection order does guarantee the protection of the victim but the reality is that in more cases than not, it does not get enforced correctly, it is sometimes not granted where there is evidence that it should and sometimes victims themselves don’t adhere to it due to circumstances beyond their own control. The justice system is flawed in its protection of victims. Though it so beautifully articulates that it prioritises victims, the truth is it prioritises the perpetrator at the expense of the victim who has to prove their case to get protection,” Murambedzi said.