What is Domestic Violence?
According to the Domestic Violence Act No. 116 of 1998 it is:
or economic harassment
or may cause harm to your health, safety, or well being
If these forms of abuse are happening to you or to anyone you know, you can
apply for a protection order. A domestic violence protection order is a
document issued by the court which prevents the abuser from:
from entering or remaining in the shared residence or a specified part of the
shared residence or
Against whom may you seek protection?
1. he person to whom you are married, whether by civil or customary rites;
2. your partner (whether of the same or opposite sex) who lives or has lived
together with you, even though you were not married to each other or are not
able to be married to each other (if, for example, one of you is already married
to someone else);
3. the other parent of your child or persons who share parental responsibility
with you for a child;
4. persons who are related to you by blood ties, marriage or adoption;
5. the person with whom you shared an engagement, customary or dating
relationship, including an actual or perceived romantic, intimate or sexual
relationship of any duration;
6. a person with whom you share or have recently shared the same residence.
What must I do?
If you feel that you are a victim of any act of domestic violence as listed
above, approach the local Magistrate Court and request assistance in bringing
an application for a Protection Order.
The Clerk of the Court will assist you to complete the necessary forms and
take you before a Magistrate who will determine whether to grant the Order or
Remember that in emergencies, this service is available 24 hours a day.
The Clerk of the Court will assist you in completing the necessary forms and
taking you before a Magistrate.
Which Court should I approach?
Approach the Court nearest to where you live or work. If you were forced to
leave your place of residence as a result of the violence and are living
elsewhere temporarily, you may approach the Court closest to your temporary
What is an Affidavit?
An Affidavit is a statement made under oath. This means that the person who
is making the statement has sworn to speak the truth and is aware that he/she
will be prosecuted if it is found out that the contents (or parts thereof) of the
Affidavit are untrue. It is an offence in a Court of Law to make a false
What will the interim Protection Order state?
who is committing the abuse) not to abuse you in the specific manner
alleged in your Affidavit.
you or the children. In extreme cases, the Magistrate may consider it
appropriate to prohibit the Respondent from entering the shared house
or restrict him/her to certain areas of the shared residence.
Respondent has no or limited contact with the children.
means that if you need to claim medical expenses or alternate
accommodation costs which arose directly as a result of the abuse, you
must provide proof of the expenses incurred and request the Court to
consider this application.
he/she has made any threat on your life.
To fully appreciate the nature of the particular abuse that you are
experiencing, the Court relies on the Affidavit that you draft when
making your application. You must therefore provide the Court with all
the relevant information in your Affidavit, for example, details of the
incidents of abuse, the date and place and nature of the last incident.
You may not claim Maintenance money from the Domestic Violence
Court. This must be done through the Maintenance Court.
What do I do with the interim Protection Order?
The interim Protection Order must be served on the Respondent as
soon as possible.
You cannot personally hand over the Order to the Respondent as this
will not constitute proper service. In other words, handing over the
interim Protection Order is the responsibility of someone in an official
capacity i.e. a Police Officer/ Sheriff/Clerk of the Court.
You must take the interim Protection Order to the Office of the Sheriff
or to the police station closest to the respondent’s residential or work
At the police station, please remember to take down the name and/or
badge number of the police person to whom you hand the Order.
This enables you to easily track the Order at a later stage. Most police
stations have a designated Officer to handle domestic violence
Arrange with the Police Officer to collect the Return of Service (Proof of
Service). This proves that the interim Protection Order has been served
on the Respondent and that they have personally received it.
The return of service must be submitted to the Clerk of the Court soon
after service. Remember that in terms of the law, the Police must assist
you in whatever manner stipulated in the Court Order, for example with
the collection of personal belongings, your ID document, children’s
books or clothes, etc.
If you find that the Police Officer is unhelpful and refuses to cooperate
in terms of the Order, you may report this to the Independent
Also note that it is not the duty of the Police to assist you with the
removal of furniture, computers, crockery, etc.
What is the Return date?
The return date is the date set to allow the Court an opportunity to hear
the Respondent before the Interim Protection Order is made final.
What happens on the Return date? In the presence of the
Complainant, the Respondent has the opportunity to present his side of
the story to the Magistrate.
The Respondent may file an opposing Affidavit or request an
opportunity to file an opposing Affidavit.
These papers will be served on you.
You will then be given an opportunity to file a reply.
Will the Respondent be arrested with the Protection Order?
The Respondent will not be arrested upon service of the Protection
It is only upon a breach of the terms of the order that the Respondent
may be arrested.
What is Contempt of Court?
This is when the Respondent has failed to appear in Court after he has
been properly served with the interim protection order notice.
What is a breach of the Protection Order?
This is when the Respondent fails to comply with the terms of the
Order, e.g. when he repeats the abusive behaviour that, according to
the Protection Order served, he has been prohibited from committing.
The matter may be adjourned to another court date for hearing.
The Clerk of the Court will assist you or direct you to someone who will
assist you with the drafting of the reply.
At the date of the hearing, the Magistrate will consider the matter and
make a decision based on the Affidavits which both parties have filed.
The Magistrate may ask either or both of you for clarification of certain
The Magistrate may decide to confirm the Order, set aside the Order or
order that oral evidence be heard.
If the Respondent fails to appear at the Civil Hearing and you have the
proof that the Protection Order was served on him (the Return of
Service), the Magistrate will make the order final.
If the Magistrate is satisfied that the Affidavit drawn up by the applicant
clearly confirms that abuse has taken place, the Magistrate will make
the Protection Order final.
Will there be a Formal Hearing?
If the Magistrate is unable to make a decision on the affidavits
presented to him because of the conflict of facts between your version
and the Respondent’s version, i.e. if there is a dispute in the
information given by both parties, the Magistrate will postpone the
matter for a formal hearing.
At the hearing, both parties will be required to give oral evidence under
oath and to be cross-examined by the other party. However, the
respondent is only allowed to ask complainant questions via his
attorney or the Magistrate.
Both parties may call witnesses to give any other supporting evidence
that they need to prove their case, for example, medical certificates,
hospital records, photographs, documents, etc.
What if the Protection Order is breached?
If the Respondent breaches the Protection Order by repeating physical
or verbal abuse on you in the manner described at the beginning of this
information pack , you may file a complaint at the police station and
hand in the Warrant of Arrest to the police who will then arrest the
Respondent, when the circumstances so permit.
Once arrested, the Respondent will face criminal charges and be tried
in a Criminal Court for breaching the Protection Order.
Remember, however, that if the Court finds that the Warrant of Arrest is
used maliciously (to have the Respondent arrested without just cause),
then you may be prosecuted in terms of the Act.
The Respondent will appear in the Criminal Court to be tried under
Criminal Charges for breaching the terms of the Protection Order
served on him/her.
Can the Criminal Charges be withdrawn?
Once the Respondent has been arrested for a breach of the Protection
Order, the Applicant may not decide to withdraw the charges.
The Senior Public Prosecutor has the sole discretion to withdraw
Can I set aside the Order?
You may, at any time, make an application to have the Order set aside.
It is however, at the discretion of the Magistrate as to whether or not to
set aside the Order.
This will mean that the Protection Order will be declared null and void.
It is important to note that in a Court of Law, it is the Magistrate’s final
decision as to whether a Protection Order may be set aside.