Grace Sithole from Middelburg has two protection orders out against her ex-husband; she has moved to a different town in order to protect herself. Regardless he still managed to follow her, he went to her work place and pointed a gun at her whilst at work. She has two protection orders out against him, which he breached and subsequently a warrant of arrest.
Listen to head paralegal, Nthofela Makhele from the Ukuthula Advice Centre in Kwaggafontein as she follows Grace’s story and interviews the police officer involved and a magistrate about the procedures and complications related to protection orders.
Here is a summary of the discussion pertaining to protection orders
Q: What is a Protection Order?
A: A protection order is a court order granted by the magistrates’ court prohibiting the perpetrator from engaging in or attempting to engage in harassment or enlisting the help of another person to do so. The protection order may contain a list of specific acts which the perpetrator may not commit.
Q: Against whom may you seek protection?
A: 1. the person to whom you are married, whether by civil or customary rites
- your partner who lives or has lived together with you, even though you were not married to each other
- the other parent of your child or persons who share parental responsibility with you for a child;
- persons who are related to you by blood ties, marriage or adoption;
- 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;
- a person with whom you share or have recently shared the same residence.
Q:How do you go about obtaining the order?
A: If you feel that you are a victim of any act of domestic violence or harassment, 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 not.
Q:Which Court should you approach?
A: 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 residence.
What will the interim Protection Order state?
- The interim Protection Order will request the the person who is committing the abuse not to abuse you in the specific manner alleged in your Affidavit.
- The Respondent may be ordered not to physically or verbally abuse you or the children.
- The Respondent may also be prohibited from entering the shared house or restrict him/her to certain areas of the shared residence.
- The Court may make an order for emergency monetary relief. This 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.
Q: Can I ask for his/her firearm to be taken away?
A: When applying for a protection order, the complainant may request for the removal of the respondent’s firearm or other dangerous weapon. If the Magistrate orders the police to remove the firearm, the police will keep the firearm until the case has been finalized. The firearm can only be returned to the respondent by order of the court, and the court may add conditions. The court may also order the State to keep the firearm if it is in the best interest of the victim’s safety.
Q;What do I do with the interim Protection Order?
The interim Protection Order must be served to the Respondent as soon as possible. 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.
Q: Can I get assistance with fetching my belongings from the shared residence?
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 Complaints Directorate.
Q:Will the Respondent be arrested with the Protection Order?
The Respondent will not be arrested upon service of the Protection Order. It is only upon a breach of the terms of the order that the Respondent may be arrested.
Q: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 behavior that, according to the Protection Order served, he has been prohibited from committing.
Q: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 brochure, 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.
Q: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 charges.