Towards the end of last 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 National Disaster Act. 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, harmful cultural practices, 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 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 abuser (‘the respondent’) from continuing or threatening further abuse. Notably, it prohibits the respondent from:
- 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);
- Communicating with you digitally, including on social media; and
- Possessing or using a firearm or dangerous weapon.
Under the DVA, violating any component of a protection order is a criminal offence and SAPS is mandated to arrest the abuser when a breach is reported.
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.
Fortunately, there is no cost to apply for a protection order, and SAPS are required to assist with urgent, after-hours applications. Furthermore, a magistrate may not refuse to process an application simply because an applicant is not legally represented.*
How to apply for a protection order
- Visit the magistrates’ court and request the protection order forms. The clerk of the court must assist you in completing the forms.
- Provide an affidavit outlining the facts on which the application is based, that is a description of the abuse and why a protection order is sought. While not required, supporting evidence, such as messages, photos, or medical reports may be included.
- In urgent cases, the court may issue an interim protection order on the same day, which may be granted without notifying the respondent first.
- The order must be served on the respondent by SAPS, the sheriff, or electronically, if authorised by the court.
- A return date will be set for both parties to appear in court and provide evidence. If the court is satisfied that domestic violence has occurred or is likely to occur, a final protection order is issued.
According to the DVA, a minor – or anyone acting on their behalf – can apply for a protection order without parental consent.
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 team at familylaw@stbb.co.za today.
*While applying for a protection order is free, sometimes legal representation may be necessary depending on the facts of the case.
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