Expert advice on what you need to know about getting a protection order
Dr Kim Lamont, an Admitted Attorney, answers the most common questions about getting a protection order.
Gender-Based violence is a pandemic in South Africa.
Each year, millions of women are subjected to abuse from their partners.
Protection orders are set to protect victims.
We spoke to Dr Kim Lamont, an Admitted Attorney about how protection orders work.
READ: Why you attract toxic partners and how to stop the cycle
How does the law protect victims of GBV
There are several laws that assist with GBV mitigation. These include:
1. 1. Domestic Violence Act when acts of GBV are between persons who are in a relationship.
1.2. Protection from Harassment Act includes both direct and indirect conduct that either causes harm or inspires a person complaining of harassment (“the Complainant”) to reasonably believe that harm may be caused to them. Such conduct includes following, watching, pursuing or the accosting of the Complainant or someone in a close relationship with the Complainant such as spouse or family member. It also includes a Respondent loitering outside of or near the building or place where the Complainant or the related person lives, works, studies or happens to be. Additionally, it includes contact through verbal, written, and electronic communication aimed at the Complainant which causes harm or makes the Complainant feel in danger or being harmed. The Act stipulates that the word “harm” includes any mental, psychological, physical or economic harm to the Complainant.
1.3. Amendment bills announced to close loopholes and curb the exploitation of the legal system by perpetrators of GBV.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act creates a new offence of sexual intimidation. This will mean that it will be a criminal offence to threaten someone else with certain sexual acts.
The Criminal and Related Matters Amendment Bill imposes stricter conditions for the granting of bail to those who are charged for allegedly committing a criminal offence linked to GBV. These amendments will also expand the types of offences for which minimum sentences must be imposed.
Changes to the Domestic Violence Act will see additions to what will be considered as domestic violence. For example, it will also include controlling behaviours, such as isolating the victim from support and regulating the victim’s everyday behavior.
READ: Sexual abuse: Victim shares signs parents can look out for
What is a protection order?
A protection order is a court order granted by a Magistrate’s Court prohibiting the perpetrator from engaging in or attempting to engage in Domestic Violence and harassment or enlisting the help of another to do so. A protection order may contain a list of specific acts which the perpetrator may not commit.
Who can apply for it?
Any person that feels threatened and faces an actual risk of harm.
When can you apply?
A court will only issue a protection order if the perpetrator’s behaviour is unreasonable or if there is a risk that the complainant/victim may be harmed or subject to abuse of any kind in the future should the court refuse to grant such an order. Any person who is the victim of harassment may approach the court for a protection order. You may also apply for a court order on behalf of another person if you have a material interest in the well-being of that person.
Where can you apply?
You make an application to the court; the application is not made at the police station. There is a misconception that the protection order application is made at the police station and granted at the police station. The police are able to assist the complainant with service of the protection order to the perpetrator.
However, the police can assist with serving the Application and or interim order on the perpetrator. Service must be undertaken personally meaning that the complainant must ensure that the perpetrator obtains (gets) the documents hence the police are able to serve the documents and the Sheriff.
Can you get a protection order on the day?
An interim protection order can be granted in order to keep the victim safe until the court date. This can only be granted by the Magistrate so once the application is made it can take approximately 1 to 7 days for the application to be reviewed to obtain the interim order and the date to return to court. The interim order must be served on the perpetrator at least 7 to 10 days before the time so that the necessary arrangements can be made to come to court.
Our Court System always requires one to hear the other side.
At the court appearance, the perpetrator will be given an opportunity to state their case and the court will then either make the interim order a final order (if the court is satisfied that there exists sufficient reasons to grant a final order) or will dismiss the application and the interim order will then fall away.
Are the different types of protection orders
You can obtain a protection order under the Domestic Violence Act and under the Harassment Act although the protection order is made under a different act the purpose of the order is to prevent the perpetrator engaging in or attempting to engage in harassment and or domestic violence.
Under the terms and additional conditions of the protection order
Each application can also make specific mention of acts that should be prohibited by the perpetrator. For example the perpetrator should not come to my place of work or to my children’s place of school.
If it is a child that is affected someone else can approach the court on your behalf, but with your written consent.
Non Compliance with Protection order
In the event the perpetrator does not comply with the order, inform the police. A warrant of arrest shall be served on the offender for the offender to appear in court for the contravention of the protection order which is an order of court.
Sometimes the abuse can take place in other ways for example if the abuser/offender/perpetrator is the breadwinner;
ECONOMIC ABUSE AND THE LAW
Economic exploitation can have far-reaching consequences. The Domestic Abuse Act 116/1998 includes economic abuse and has the potential to bring about real change for victims and survivors. Economic exploitation may also be prosecuted as controlling or coercive behaviour. The Domestic Violence Act 116/1998 is the law that deals with domestic violence in South Africa. This law exists to give people who are experiencing domestic violence the best possible protection that the law can, and it commits the government to stopping domestic violence. Note: The Domestic Violence Amendment Act 14/2021 has been legislated but is not yet in force. With the amendments certain definitions have been extended and new definitions have been included; further provide for the manner in which acts of domestic violence and matters related thereto, must be dealt with; further regulate protection orders in response to acts of domestic violence; amend provisions of certain laws; and provide for matters connected therewith.
To those that go back to their abuser/offender/perpetrator –
Self-care is a self-regulatory mechanism where one intentionally puts effort and measures towards their well-being. Well-being would affect and be affected by the different aspects of one’s life and the choices they make. GBV does not just happen, in most cases that are subtle or obvious signs that in more often people choose to ignore for many other reasons.
Violence against women happens across a spectrum, and at the end of that spectrum in most cases, is a man who snapped or a man who violates someone or their partner because they have inherent habits of violence. It should therefore be noted that we all have the power to remedy such behaviours in order to implement societal change.
READ: Sexual abuse: Victim shares signs parents can look out for
Image courtesy of iStock/ @asiandelight