This month, the South African government formally recognised the scourge of gender-based violence and femicide as a ‘national disaster’ pursuant to section 23 of the Disaster Management Act. This classification, which was gazetted last week, reinforces the need for a co-ordinated national response to gender-based violence and femicide. For many survivors of gender-based violence and individuals at risk, the most pressing need is often personal safety. While not a solution to a systemic problem, South Africa’s Domestic Violence Act, as amended, provides an important legal tool to help stop ongoing domestic violence and minimise the threat of further harm: A court-issued protection order.
What does the Domestic Violence Act protect against?
Under the Domestic Violence Act (‘the DVA’), ‘domestic violence’ is broadly defined to include physical abuse, emotional, verbal, and psychological abuse, stalking, harassment, sexual abuse, intimidation, controlling or coercive behaviour, entry into a residence without consent, damage to property, elder abuse, spiritual abuse, exposing a child to domestic violence, as well economic abuse, which entails the unreasonable deprivation of economic resources and disposing of one’s financial and household resources without permission.
Crucially, the DVA explicitly protects persons in dating or engagement relationships, co-parenting relationships (even without romantic involvement), customary or religious relationships, and individuals in a close relationship who share or previously shared the same residence.
What is a protection order and what does it achieve?
A protection order is a legally binding court order that prohibits the domestic abuser (‘the respondent’) from continuing or threatening further abuse. Depending on the circumstances, it may prevent the respondent from engaging in various forms of abusive behaviour, including:
- Contacting or intimidating you;
- Approaching your home, workplace, school, or any place you regularly visit;
- Committing any form of domestic violence;
- Following, tracking, or surveilling you (including via electronic means); and
- Communicating with you digitally, including on social media.
The court may impose additional conditions to ensure the complainant’s safety and may order the seizure of weapons where the statutory requirements are met.
Under the DVA, violating a protection order is a criminal offence. When issuing a protection order, the court must also authorise a warrant of arrest, the execution of which is suspended for as long as the respondent complies with the order. If the respondent breaches the order, the complainant may approach SAPS who must arrest the respondent where there are reasonable grounds to suspect that the complainant is suffering, or may suffer, harm as a result of the breach. Where the requirements for arrest are not met, SAPS must issue a written notice requiring the respondent to appear in court.
Where to apply for a protection order
You can apply for a protection order at any magistrates’ court located in the jurisdiction in which you live or work, where the abuse occurred, or where the respondent resides.
How to apply for a protection order
- Obtain and complete the prescribed application form (Form 6) at a magistrates’ court with jurisdiction. Applications may also be submitted electronically to the relevant court, in accordance with the prescribed procedures. Legal representation is not required, and the clerk of the court must explain the available remedies and assist applicants who cannot complete the form without assistance.
- Describe the abuse and the protection sought by providing details of incidents and explaining why a protection order is necessary. Supporting evidence, such as messages, photographs, medical records, or witness statements, may be included. Your confidential personal information must be recorded separately on Form 6A, which must not be served on the respondent.
- If immediate protection is needed, explain the urgency and risk of harm in the application. The DVA requires prima facie evidence that the respondent is committing or has committed domestic violence, and that undue hardship may be suffered if an order is not issued immediately. Where these requirements are met, the court must issue an interim protection order without first notifying or hearing the respondent. Urgent applications may also be considered outside ordinary court hours.
- The interim protection order and relevant application documents must be served on the respondent by the clerk of the court, sheriff, or an authorised peace officer, including a SAPS member, in accordance with the prescribed procedures. An interim protection order becomes legally effective once its existence and contents have been served on the respondent.
- A return date will be set. Both parties are afforded an opportunity to present their evidence, and the respondent may oppose the application.
- The court will determine whether a final protection order should be granted. Where the application is opposed, a final order must be issued if the court finds, on a balance of probabilities, that the respondent has committed or is committing domestic violence. A final order may also be issued in the respondent’s absence where the statutory requirements, including proper service, are satisfied.
According to the DVA, a minor – or anyone acting on their behalf – can apply for a protection order without parental consent.
Urgent applications
Urgent applications for protection orders may be considered outside ordinary court hours, including weekends and public holidays, where the statutory requirements are met. Designated court officials must be available to facilitate these applications, while SAPS are required to provide appropriate assistance to complainants. Legal representation is not required to apply for a protection order, and the clerk of the court must inform unrepresented applicants of their rights and assist them in completing the application where necessary.
Costs of a protection order
Fortunately, there is no cost to apply for a protection order. However, costs may arise when court documents are served on the respondent. If the applicant cannot afford these costs, the court may direct the State to pay them. Crucially, while applying for a protection order is free, costs related to service sometimes legal representation may be necessary depending on the specific facts of the case.
Why a protection order matters
While a protection order is certainly not a guaranteed mechanism for eliminating domestic violence, it provides survivors with a swift and accessible way to create a legally enforceable barrier between themselves and their abusers. Importantly, applying for a protection order does not require you to leave your home, withdraw existing criminal charges, or pursue further legal action. It is simply a protective measure to secure your personal safety and the safety of your loved ones.
How we can help
If you or someone you know needs professional help obtaining a protection order, our Cape Town-based family law attorneys are here to assist, guide, and support you through each step of the process – with compassion and clarity. If your abuser is a spouse or life partner, our experienced divorce attorneys can help you navigate the financial and proprietary consequences of terminating the marriage or life partnership as efficiently and expeditiously as possible.
Crucially, our attorneys understand the complex dynamics that arise when minor children are involved and are here to provide effective legal solutions that operate in the best interests of our clients’ children.
You are not alone. For sound legal assistance, contact our Cape Town-based team today.
This content is protected by the Copyright Act 98 of 1978. If you wish to copy or reproduce this content on your own platform or website, please ensure that the author is properly credited and the link to this article is included.
