Restraining Order (Protection Order) South Africa

What is the Domestic Violence Act?

The Domestic Violence Act 116 of 1998 (DVA) defines domestic violence broadly to include physical, sexual, emotional, psychological, economic abuse, intimidation, harassment, stalking, damage to property, and any other controlling or abusive behaviour. The Act applies to people in a domestic relationship — this includes spouses, life partners, family members, people in a dating relationship, parents of a shared child, and persons who share or recently shared a residence.

Types of Protection Orders

• Interim Protection Order – granted immediately (same day) by a magistrate if there is prima facie evidence of domestic violence and a risk of imminent harm. It is temporary and remains in force until the return date.
• Final Protection Order – granted after both parties have had an opportunity to be heard on the return date. If the respondent (abuser) does not appear, a final order can be granted in their absence.

How to Apply: Step by Step

1. Go to the Clerk of the Court at your nearest Magistrate's Court and ask for the Form 2 (Application for Protection Order) under the Domestic Violence Act.
2. Complete the form describing the acts of domestic violence, your relationship to the respondent, and the relief you are seeking (for example, that the respondent be ordered not to contact you or to leave the shared home).
3. Submit the form to the Clerk. If the court is closed and you are in immediate danger, SAPS may assist in obtaining an emergency order.
4. A magistrate considers your application in chambers (privately). No hearing is required at this stage.
5. If granted, an Interim Protection Order and a Notice to Appear (Form 3) are issued. The Sheriff will serve these on the respondent.
6. On the return date both you and the respondent appear in court. The magistrate hears both sides and decides whether to grant a Final Protection Order (Form 5).
7. If a Final Order is granted, a warrant of arrest (Form 4) is simultaneously issued and handed to you. Keep it safe — if the respondent breaches the order, hand the warrant to SAPS and they must arrest him/her.

Role of SAPS

The South African Police Service has specific duties under the DVA. Any SAPS member must assist a complainant in applying for a protection order if the court is closed, help the complainant reach a place of safety, arrest a respondent who has breached a protection order when a warrant has been issued, and may arrest without a warrant if there is imminent danger.

SAPS stations have Victim-Friendly Rooms where trained officers assist domestic violence survivors in a private and safe environment.

What a Protection Order Can Instruct

• Prohibit the respondent from committing any act of domestic violence
• Order the respondent to leave the shared home (even if they own or rent it)
• Prohibit the respondent from entering your workplace, school, or any specified place
• Prohibit the respondent from contacting you by any means
• Award you temporary custody of children or pets
• Order the respondent to pay emergency monetary relief
• Confiscate any dangerous weapons held by the respondent

Breaching a Protection Order

If the respondent breaches the protection order, this is a criminal offence under section 17 of the DVA. Present the warrant of arrest (Form 4) to any SAPS officer. The officer must arrest the respondent. Upon conviction, the respondent may be fined or imprisoned for up to five years, or both.

Forms Used