Protection Orders and Domestic Violence: Understanding Your Rights
Before we delve into this topic, it is important to understand the differences between Protection Orders and Domestic Violence. It is equally important to familiarise yourself with the legal language used in these contexts.
Here are some legal terms you may find useful in this article:
- Applicant: This refers to the victim who opens a case against another party.
- Accused: The party being accused of an offense.
- Respondent: Another term for the Accused, the person who allegedly committed the offense.
- Minor: Refers to a child involved, usually under the age of 16.
- Clerk: The person responsible for assisting with legal forms and managing the division in the Court.
- Court: A government building where victims and criminals seek legal help, guidance, justice, and punishment.
What is a Protection Order?
A Protection Order, also known as an Order of Protection or PO, is a legal document issued by a Magistrate that sets certain rules and guidelines for the Accused to follow. Failure to comply with these rules may result in an arrest warrant being issued, depending on the severity of the breach.
The purpose of a Protection Order is to prevent and stop violent and abusive behaviour from occurring repeatedly.
What is Domestic Violence?
Domestic violence, also known as relationship abuse, refers to a consistent pattern of abusive behaviour used by one partner to maintain power and control over another partner in an intimate relationship.
I am being abused. What should I do?
If you are experiencing abuse, whether it is emotional or physical, we strongly recommend filing for a Protection Order. Your safety is at risk, and such behaviour is simply unacceptable.
Abuse can be defined as an attempt to control another person’s behaviour, misusing power through the bonds of intimacy, trust, and dependency to make the victim vulnerable.
We will guide you through the process below. Please follow the steps carefully to ensure you don’t need to make repeated trips to the Court House due to missing information.
As previously mentioned, a Protection Order is a legal document issued by a Court of Law.
As the Applicant (the person applying for protection), you will need to provide the court with several details.
The Protection Order will require you to define the following:
- The incident that took place.
- A brief description of the incident.
- The date and time of the incident (providing more detail is beneficial).
- The rules you want to be implemented.
Examples of rules that can be implemented:
If you believe you need a Protection Order, you can request the following types of boundaries for your protection:
- No calling or texting the Applicant (you).
- No approaching the Applicant (a physical restraint can be put in place, ensuring the Accused cannot get closer than 250m to you).
- No sharing of information.
- Refraining from approaching your work or residential address.
Does the Abuser receive a warning that you are seeking immediate protection?
Once you have completed all the necessary forms to obtain a Protection Order, you will submit those documents to the Clerk of the Court.
The Clerk of the Court will then pass your file to the Magistrate for a final decision.
Two things can happen at this stage:
- The Magistrate may grant you an Interim Protection Order, providing you with immediate protection.
- The Magistrate may deny your Interim Protection Order and ask both the Applicant and the Respondent to appear in Court to present their sides. This could be due to a lack of evidence or perceived risk.
If you are granted an Interim Protection Order (option 1), it means the Magistrate believes you have substantiated your claim enough to warrant immediate protection.
At this point, you will receive a temporary document stating that you have sought protection from a Court of Law.
The police will then contact the Respondent in two ways:
- Phone Call: They will call or send an SMS to the Respondent, asking them to come to the Police Station for arrest and to provide a formal statement.
- In-person: The Accused will be served with the necessary documents and arrested in person.
Regardless of how the person is contacted and arrested, the Respondent/Accused will be notified. This is an important step as they must face consequences for their actions.
If the Protection Order is granted, does the Applicant receive a Warrant of Arrest?
This depends on the situation. In some instances, yes, the Applicant is physically handed the warrant of arrest, giving them the ability to take action if necessary.
However, if the Magistrate or your appointed Attorney suspects that the Applicant may act with malicious intent (such as trying to get the Accused arrested out of anger or making a false claim), the Court will side with the Respondent. The warrant will be kept by the Magistrate at the court.
In such cases, if the Applicant wants to have the Accused arrested, they would need to approach the Domestic Violence Court and provide legitimate reasons for the arrest.
What grounds do you need to request a Protection Order?
To obtain a Protection Order and summon someone to Court, you must demonstrate some of the following behaviours:
- Obsessive behaviour (stalking, constant messaging and calling).
- Evidence of abuse (physical, mental, emotional, sexual, or financial).
- Bank statements showing financial abuse.
- Evidence that someone is trying to implicate you by breaching their own protection order against you.
- Malicious prosecution or false accusations.
- Constant threats.
- Surveillance, such as watching you from a car.
- Parking near or outside your home as a form of abuse and intimidation.
- Publicly humiliating you by spreading false accusations or mocking your sexual orientation. This is a form of abuse.
How do you obtain a Protection Order?
To obtain a Protection Order, follow these steps:
- Approach the Domestic Violence section of the court.
- Request to speak to the Clerk of the Court.
- Explain your situation and the reasons why you need protection.
- Obtain a protection form.
- Fill in all your personal information and describe what has happened to you.
- Return the form to the Domestic Violence Court for submission to the Court.
- Wait for the Magistrate’s decision. Even if an immediate protection order is not granted, your side of the story will still be heard.
- The SAPS (South African Police Service) will serve the defendant and summon them to Court.
How do I know if the Applicant is breaching the Protection Order against me?
If you believe that the Applicant who obtained a Protection Order against you is breaching it by breaking the rules they want you to follow, watch out for the following signs:
If it is a physical protection order:
- Physical harm caused to the person, resulting in hospitalisation (severe injuries, bleeding, broken bones) or severe bodily harm (bruises, scratches, etc.).
Ways to apply for the removal or amendment of a Protection Order:
- If the Applicant claims recent abuse, provide evidence and an alibi to demonstrate your whereabouts during the alleged incidents.
- Request a doctor’s report and compare your hands to any bruises shown in pictures, as it may prove you could not have caused the injuries.
- If the Applicant claims to be scared of you but intentionally puts themselves in your company, record a video showing the situation to refute their claims.
- Inform your Attorney immediately, if you have one.
- Document any necessary evidence through photographs or recordings.
If it is a protection order to prevent you from sharing personal information:
- The Applicant believes you shared their address, phone number, or other personal information with malicious intent, such as defamation or serving them.
Ways to apply for the removal or amendment of an Information Protection Order:
- If you are still receiving the Applicant’s personal information, save it as proof in your email and inform your Attorney to present it before a Magistrate.
- If you are accused of sharing personal information, remember that there must be evidence to support the claim. Consult your Attorney or treat it with caution, as some tactics may aim to intimidate rather than present factual evidence.
- If you receive calls from debt companies or people looking for the Applicant, keep a record of the call or, ideally, record the conversation itself to present to the Court, demonstrating your refusal to engage in the matter.
What to keep in mind if you don’t have a Lawyer/Attorney
When dealing with another party’s Attorney, consider the following:
- Obtain the Lawyer’s full name and surname to know who you are dealing with. It is also helpful to determine the firm they represent, allowing you to conduct your own research.
- Research the Attorney’s background, such as their level of experience and the types of cases they handle, whether criminal, family matters like divorce, or contract creation.
Never back down and always stand up for yourself. This is an old trick used by Lawyers to manipulate you and make you appear foolish.
If an Attorney asks if you want to stand the matter down, politely decline.
Standing down means that the Attorney will tell you that you can leave the Court or attend to your other responsibilities while assuring you that they will inform the Magistrate that you were present but required a postponement due to a family-related issue, for example.
In reality, the Attorney will go before the Magistrate and claim to have no knowledge of your whereabouts.
At this point, the Magistrate can proceed without you, perceiving your absence as disrespect, when in fact, you relied on the Accused’s Lawyer to inform the Magistrate.
Please remember: At The Au Pair Club, we are not Attorneys and encourage you to seek proper legal advice if needed. We cannot be held liable for any actions taken based on this information.