In modern society today, we find that many values that once existed, are no longer prevalent. We see evidence of this on the road, at our places of work and sometimes even in our own homes.
Our courts offer protection to victims who have been or are being affected by someone else’s behaviour towards them. A protection order aims at preventing the reoccurrence of domestic violence/harassment by stating what conduct the alleged offender must refrain from doing. Once a protection order is granted, it is enforceable throughout the country.
THE APPLICATION PROCESS
The first step would be to approach the Domestic Violence section of one’s local court and complete an application. The complainant is required to take any evidence of domestic violence/harassment to attach to the application, as this will strengthen the case. This includes but is not limited to photographs, messages, emails etc. Once the application is compiled, it is brought before a Magistrate who would assess the merits of the matter. In the application, one would need to prove to the court, details of the incidents that took place from which he/she needs protection and show the court that should the order not be granted that he/she would be prejudiced, as the offender’s behaviour will most likely continue.
RELIEF
If the court is satisfied that there is sufficient evidence that the offender is committing an act of domestic violence/harassment and unnecessary hardship may be suffered by the complainant as a result of the act, the court will issue an interim protection order against the offender. The purpose of this interim protection order is to grant interim relief to the complainant until such time that the matter is finalised. Attached to the interim order is a warrant of arrest, which allows one to have the aggressor arrested should he/she fail to comply with the terms of the interim order.
Once an Interim Order has been granted it would be served on the offender via members of the SAPS. This advises the offender that the interim protection order has been granted and advises him/her of the date when to appear in court. This is called the return date. It is important to note that an interim protection order has no force until it is served on the offender.
WHAT’S NEXT
On the return date, the offender is generally present. If the offender does not appear in court on the return date, but the court is satisfied that proper notice has been given to the offender and that there is sufficient evidence that an act/s of domestic violence/ harassment have been committed, the court may make a final order on the return date.
If the offender attends court and advises that he/she wishes to defend the matter, then the matter is adjourned for the offender to file an opposing affidavit, giving reasons why the order against him/her should not be made final. The complainant will be given an opportunity to reply to the opposing affidavit.
If the Magistrate is unable to decide on the affidavits presented, due to conflict of facts between the complainant’s version and the offender’s version, the matter will be postponed for a formal hearing. The court will then hear evidence from both parties and any other witnesses. The court will then consider all the evidence put before it in order to decide.
When applying for a protection order, the victim/complainant may request for the removal of the offender’s firearm. If the Magistrate orders the police to remove the firearm, the police will keep the firearm until the case has been finalised. The firearm can only be returned to the offender by order of the court, and the court may add conditions.
THE NITTY GRITTY
Applying for a Protection / Harassment Order can be a drawn-out process and therefore settlement between parties should be considered, if possible. Obtaining a protection order can be daunting, as you would have to face your aggressor and voice your concerns to the court when asked to do so.
If it for this reason that many people choose to hire the services of an attorney to assist with this, as an attorney is equipped to put forward your case in a manner that you may not be able to do so.
ON THE FLIP SIDE
If you are being labelled as the offender and need assistance to prove that the claims made against you are untrue, please contact us to avoid an order bring granted against you, when in fact the matter could have been settled or even dismissed.
We, at Mckenzie Dixon Attorneys have specially trained staff who can assist you with either bringing an application for protection from domestic violence/harassment or to defend an application which has been brought against you. Contact us to assist you further.
BY: LARISSA SINGH