When does prescription of a debt start?

Debt does not last forever, after a period of time it prescribes and becomes invalid. Prescribed debt can be explained as old debt that has not been acknowledged over a period of three years. This means that a debt prescribes if:

  • You have not acknowledged the debt in the past three consecutive years, either in writing or verbally.
  • You have not been summonsed to make a payment by a creditor for the debt within the past three consecutive years.

Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited

On 5 September 2017, the Constitutional Court handed down a judgment in an appeal against the judgment and order of the Supreme Court of Appeal (SCA) against Trinity Asset Management (Pty) Ltd (Trinity). The SCA ruled that Trinity’s claim for repayment of a debt of some R4.55 million against Grindstone Investments 132 (Pty) Ltd (Grindstone) was unenforceable because it had prescribed.

The parties entered into a written loan agreement, effective from 1 September 2007, in terms of which Grindstone borrowed a capital amount of R3 050 000 (loan capital) from Trinity. Clause 2.3 of the loan agreement provided that the loan capital was due and repayable to the applicant within 30 days from the date of delivery of Trinity’s written demand.

The majority judgment found that, on a holistic reading of the loan agreement, the parties did not intend to delay when the debt would become due or when prescription would begin to run. The parties’ language in the contract did not signify an intention to delay. The parties simply meant to allow Grindstone 30 days to repay the debt once Trinity had issued demand, not to postpone the due date of the debt to an indeterminate future date. The debt thus became due, and prescription began to run, immediately on conclusion of the contract.

Grindstone therefore raised a valid prescription defence, and the appeal was dismissed.

Conclusion

If you are uncertain about a debt amount or require assistance in this regard, then please contact your financial advisor, who will assist you with taking the next steps.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited (CCCT248/16) [2017] ZACC 32 (5 September 2017)

www.debtbusters.co.za/what-is-prescribed-debt/

Municipal debt invalid, the Constitutional Court has ruled

On 23 May 2017, the Constitutional Court heard an application for confirmation of an order of the High Court of South Africa, that declared section 118(3) of the Local Government: Municipal Systems Act, 2000, constitutionally invalid.

On 29 August, in a ruling majority written by Justice Edwin Cameron, the court found that upon transfer of a property, a new owner is not liable for old municipal debt.

Section 118 of the Municipal Systems Act

Section 118(3) explains that municipal debt on any property is a charge upon that property and enjoys preference over any mortgage bond registered against the property. However, the question was whether this means that, when a new owner buys the property, the property remains with the debts of a previous owner.

What did the court say?

The court ruled that section 118 (3) is “well capable of being interpreted”, so that the historical debt is not transferred to a new owner of the property.

“What is notable about section 118(3) is that the legislature did not require that the charge (historical debt) be either registered or noted on the register of deeds. Textually, there is no indication that the right given to municipalities has a third-party effect (to a new owner)… It (historical debt) stands alone, isolated and unsupported, without foundation or undergirding and with no express words carrying any suggestion that it is transmissible,” the court said in the judgement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

The Constitutional Court of South Africa

“Concourt rules new homeowners not liable for debts of previous owners”, Ray Mahlaka, The Citizen, 29 August 2017. https://citizen.co.za/news/south-africa/1631149/concourt-rules-new-homeowners-not-liable-for-debts-of-previous-owners/

Jordaan and Another v City of Tshwane Metropolitan Municipality and Others; New Ventures Consulting & Services (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Another; Livanos and Others v Ekurhuleni Metropolitan Municipality and Another; Oak Plant Rentals (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality (74195/2013; 13039/2014; 13040/2014; 19552/2015; 23826/2014) [2016] ZAGPPHC 941; [2017] 1 All SA 585 (GP); 2017 (2) SA 295 (GP) (7 November 2016)

My neighbour is a nuisance

It is the third night this week you cannot sleep, because your new neighbour enjoys playing loud rock music late at night. Being kept up till 2 am every morning is affecting your productivity at work. You talk with your neighbour, but he doesn’t seem to see a problem. What now?

Occasional loud noise, if the neighbours have a birthday party, for example, may be considered reasonable. However, if the behaviour of neighbours is repetitively disruptive to the extent that it affects your ability to enjoy your property, then the law supports your concern.

What does the law say about loud neighbours?

There are Noise Control Regulations under the Environment Conservation Act (Act 73 1989). These regulations state that no person (including your neighbour) is allowed to:

Operate or play a radio, television, drum, musical instrument, sound amplifier, loud speaker system or similar device that produces, reproduces or amplifies sound, or allow it to be operated or played so as to cause a noise nuisance.

The regulations also give local authorities (i.e. your municipality) the right to enter premises without prior notice, on condition it’s at a reasonable time of the day. This would be to inspect the premises and take any action if necessary.

What makes your neighbour a nuisance?

The basic question is whether the noise is unreasonable in the circumstances. In a busy city area, for instance, noise pollution is common, but in a residential area life can be expected to be quieter.

Noise is not the only neighbourly “nuisance”. Some other causes of nuisance include:

  1. Bad odours.
  2. Excessive movement of vehicles or people.
  3. Smoke, gas or fumes.

Before reacting to the conduct of your neighbour you should consider the following:

  1. The area affected.
  2. The extent of the disturbance.
  3. The time, duration and frequency of the disturbance.

What can you do?

The first step of any neighbourly dispute should be to approach your neighbour and ask them to stop what’s causing the nuisance, such as telling them to turn down the music. If matters cannot be resolved reasonably and interventions by your local authority or by calling the police produce no results, you should get legal advice on obtaining a court order (interdict), directing the neighbour to stop causing the nuisance.

 Reference:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How can a person get married in South Africa?

A person can get married by way of a civil marriage, customary marriage, civil union or religious marriage. A religious marriage is not recognised as a valid marriage, unless a marriage officer officiates, but the spouses in a religious marriage can be protected by law in certain instances.

What are the general requirements for a valid marriage?

  1. Both persons to the marriage must give consent to get married and must be older than 18 years of age.
  2. A person younger than 18 years of age, needs the permission of his/her parent/s or guardian/s to get married.  No person younger than 18 years of age can enter into a civil union.
  3. The marriage must be lawful in terms of rules such as the following:
    1. Persons who are closely related (such as brother or sister, or parent and child) may not get married.
    2. A person may not be party to more than one marriage at a time, except for customary marriages.
  4. Certain formalities must be adhered to, such as that the marriage must be concluded by a marriage officer in the presence of two witnesses.
  5. A marriage must be registered at the Department of Home Affairs.

The difference between marriage in and out of community of property:

  1. MARRIAGE IN COMMUNITY OF PROPERTY:  There is one estate between a husband and a wife.  Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%).  Both spouses are jointly liable to creditors, with certain exceptions.
  2. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM:  The spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”).  Each spouse is separately liable to his/her creditors.  Prior to the marriage, an antenuptial contract must be entered into to indicate that the marriage will be out of community of property.
  3. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM:  This is identical to a “marriage out of community of property”, but the accrual system will be applicable.  The accrual system involves the calculation of how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce.  Only property acquired during the marriage can be considered when calculating the accrual.  The accrual system does not automatically apply and must be included in an antenuptial contract.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:
https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages/

Adopting a child in South Africa

Adoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father.
A legal adoption order ends the parental rights of the birth mother and father and places the parental rights and responsibilities with the adoptive parents.There are 4 phases in the adoption process:

1. Application

In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system.

When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.
Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.

2. Screening process

All prospective adoptive parents are required to undergo a screening and preparation process. This normally involves:

  • orientation meetings,
  • interviews with a social worker,
  • full medical examinations,
  • marriage and psychological assessments,
  • home visits, and
  • police clearance and the checking of references.

The screening process allows social workers to get to know prospective adopters as a family, their motivation to adopt and their ability to offer a child a warm, loving and stable home.

3. Waiting list

Once the screening process is complete, applicants are placed on a waiting list for a child. Applicants have their own ideas and wishes about the child they wish to adopt.

They can decide about the age and sex of the baby or child they would like to adopt, and adoption agencies will try to meet those personal expectations.

4. Placement

The official placement of the child with the adoptive parents is a legal process, carried out through the Children’s Court.

Once the child has been with the new parents for a period of time, and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalised through the Children’s Court.

The child then becomes the legal child of the adoptive parents as if the child was born to them and has all the same rights as a biological child.

The position of an adopted child is the same as that of a biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated. The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court decides otherwise). An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:
https://www.legalwise.co.za/help-yourself/quicklaw-guides/adoption/
https://www.westerncape.gov.za/service/adopting-child

What to do after a car accident?

If a driver of a vehicle, at the time when the vehicle is involved in or contributes to any accident in which any person is killed or injured or suffers damage in respect of any property, including a vehicle, or animal, must report the accident to a police or traffic officer at the scene of the accident as soon as possible, unless he or she is incapable of doing so by reason of injuries sustained by him or her in the accident. In the case where a person is killed or injured, it must be within 24 hours after the occurrence of the accident, or in any other case on the first working day after the accident.

What must a person do after a motor vehicle accident (“accident”)?

  1. Call the police or report the accident at the nearest police station within 24 hours if a person is killed or injured; or on the first working day after the accident if no person was killed or injured.
  2. Write down the name of the police officer spoken to and the accident report’s reference number.
  3. Co-operate with all emergency personnel and police who respond to the accident.
  4. Get the details of all other motor vehicles involved in the accident, such as the drivers; names, identity numbers, addresses, telephone numbers, description of the motor vehicles, the registration numbers, and any relevant details from the licence discs; the date, time and address of the accident; the weather and road conditions when the accident occurred; and any other information that may be relevant.
  5. If an employee is driving a motor vehicle on behalf of his/her employer, then the details of the driver and the employer must be taken.
  6. Write down the names, addresses, and phone numbers of all potential witnesses of the accident.
  7. Take photographs or a video of the following: the scene of the accident, from all angles; the surrounding area; the injuries; and any damage to property.
  8. Draw a sketch plan of the scene of the accident and make sure that it contains a fixed point so that it can easily be traced. Also make a statement about how the accident happened. This sketch and statement will remind a person of all the details relating to the accident at a later stage.
  9. If a person has been injured, a doctor must be consulted immediately, even if the injury is not serious.
  10. If the person is insured, that person has to notify his/her insurance or broker as soon as possible. Write down the name of the person spoken to at the insurance and the reference number of the claim.

What must a person NOT do after an accident?

  1. Move his/her motor vehicle; unless it is necessary for safety or required by law.
  2. Subject himself/herself to further injury by standing or waiting in an area near traffic or other safety hazards.
  3. Leave the scene of an accident until the police tell him/her to do so.
  4. Throw away any potential evidence, such as defective products, important documents, or torn or blood-stained clothing.
  5. Engage in discussions of fault with anyone as that can be considered evidence in court – do not admit liability.
  6. Agree to settlement terms without discussing the matter with an attorney.

Although involvement in a motor accident is always a traumatic experience, try to remember that nearly all accidents have legal consequences. For instance, a criminal charge of driving without a licence, drunken driving or culpable homicide may follow. Civil consequences may include claims for damage to property, or for personal injury, and may arise whether there is a criminal charge or not.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

Source 1

Source 2

Don’t speed through life

Jack Louw was used to driving fast cars – he was practically born with one foot on the accelerator. Jack was also born into a very rich family, which meant there was always money to pay for the fines he kept receiving for exceeding the speed limit. However, Jack’s luck would soon change and he might end up with more than a fine.

According to the National Road Traffic Act 93 of 1996 and the Regulations published on 17 March 2000, the general speed limits are: 60 km/h on a public road within an urban area; 100 km/h on a public road outside an urban area which is not a freeway, and 120 km/h on every freeway.

Prosecution or the imposition of a spot fine is automatic if you are caught exceeding the 60km/h and general speed limits. However, if you speed in a 60km/h zone, and it is greater than 100km/h, you will not have the option of paying an admission-of-guilt fine, but will have to appear in court to answer a charge of reckless or dangerous driving and contravention of the Act.

Depending on the seriousness of the offence, you may or may not be given the alternative of an admission-of-guilt fine as opposed to having to appear in Court. An admission-of-guilt fine is a fine that a person is issued with after admitting guilt. It may seem like an easy exit to all problems. However, once admitting guilt, the person will have a criminal record.

Admission-of-guilt fines for speeding are calculated on the basis of rands per km/h in excess of the speed limit. These fines may be paid at any office of the South African Police Service in the Magisterial district where the offence occurred, by the date stipulated on the notice that will be posted to you within two weeks after you received the ticket. You must produce the ticket when paying the fine.

Should you choose not to pay the admission-of-guilt fine, but rather state your case in court, you should check the fine to ascertain the date on which you must appear in Court and the case number. Queries about the fine must be directed to the clerk of the criminal court of the Magisterial district of issue, and the actual document must accompany your query.

It is important to take notice of the speed you are driving. It may be important for you to get to your destination in time, but is it worth paying a fine, or having a criminal record? It is also important to remember that if you get a fine in a town other than your home town, you will have to travel back to that town to appear in court.

Think before admitting guilt to a speeding offence, or even better, think twice before committing an offence that would put you in that position.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Consider your claim carefully: Some of the need to know facts in the event of a third party claim against the RAF (Road Accident Fund)

The Road Accident Fund (hereinafter referred to as the RAF) has over the years created the assurance that public road users will be covered in the event of any motor vehicle accident which caused either injuries or death, and for the losses suffered thereby, such as medical expenses, loss of earnings and even general damages (damages for pain and suffering).Before the Road Accident Fund Amendment Act 19 of 2005, which came into operation on 1 August 2008, this had the effect of any person simply being able to institute a claim against the RAF in any event of an accident which amounted to damages suffered as a result of injury or death, or even a claim based on pain and suffering. This sounded simple enough, that is until the Road Accident Fund Amendment Act 19 of 2005 came into operation, placing two very important limitations on claims from the RAF.

The first limitation relates to claiming from the RAF and/or the wrongdoer. In respect of the old Road Accident Fund Act 56 of 1996, the victim who had a limited claim against the RAF, still had a common law claim against the wrongdoer in respect of the excess amount not compensated for by the RAF. This meant that should the road accident victim only be compensated by the RAF for a portion of the damages suffered during the accident, the remaining portion could still be claimed from the wrongdoer in his personal capacity. For example, if victim X suffered damages in the amount of R200 000 and the RAF only compensated the victim in the amount of R150 000, the remaining R50 000 could still be recovered from the wrongdoer in person. This would have the effect of two separate claims. However, should the victim have received full compensation in terms of Section 17 of Act 56 of 1996 for the amount of R200 000, such victim would not have another claim against the wrongdoer.

In terms of the new Road Accident Fund Amendment Act this common law right has been abolished by the institution of Section 21 of the Road Accident Fund Amendment Act. The victim will currently only be able to claim/recover losses or damages suffered as a result of a motor vehicle accident from the RAF. There can be no more separate claims in respect of one cause of action.

The second important amendment is a part of Section 21 which places a cap on the amount of loss of earnings claimed and the amount of general damages claimed, i.e. damages claimed for pain and suffering.

With regard to the capped amount allowed to claim for loss of earnings, a victim is only allowed to claim damages up to the amount of R160 000, but this amount changes quarterly according to the fluctuation in interest rates and currently it stands at R201 337 per annum as from October 2012. Should the victim earn a salary of more than the said amount per annum, he or she will be unable to institute such a claim against the RAF. / Should the victim earn a salary of more than the said amount per annum, his or her claim will be limited to the amount dictated by the Law.

Furthermore, with regard to a claim for damages based on injuries suffered, the claim will only succeed if the victim can prove that he/she has suffered “serious injuries” as defined in the Act. This would amount to injuries sustained which has ultimately rendered such victim at least 30% disabled in his or her everyday life. This limitation does not take into consideration any personal circumstances. Similarly, no common law right exists to institute a second claim against the wrongdoer in the event of failure against the RAF.

Also important to remember is the fact that when consideration is given to medical expenses suffered, the amount is calculated according to the rate charged at a public level (public hospital rates) and not at a private level (private hospital rates).

In conclusion, it is important to remember that the RAF takes over the liability of the wrongdoer in such accidents, meaning that actions must be instituted against the RAF and not the wrongdoer in the first instance. The exception is where the RAF is unable to pay compensation or where emotional shock is suffered. In such a case, the action may be instituted against the wrongdoer in person. Any action instituted against the RAF is a time-consuming process and requires due consideration before proceeding. Section 21 of the Road Accident Fund Amendment Act has definitely placed limitations on claims that need to be borne in mind.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Protect yourself and your children: STOP HARASSMENT like this …

Obtaining a protection order from harassment has never been so easy and so cost-effective. But why is this important, considering that until now a protection order was only valid between persons who are in a close relationship with each other, meaning persons who are or were engaged, are or were married, have lived together, or are in a parent-child relationship? This is where the good news comes in.Before the commencement of the Protection from Harassment Act 17 of 2011 which came into operation on 27 April 2013, obtaining an order for protection from harassment was lengthy and costly. The position has changed drastically since then.

The main idea and purpose behind the Act is to provide some form of relief to the needy and poor – those who are not able to afford a hotshot lawyer and those who are not in the fortunate financial position to make a change.

In one of the first cases in which an order was granted in terms of the provisions of the Act, it took only five hours to obtain the order, with minimal effort and cost. However, before an application for an order is considered it must be established what kind of conduct qualifies as harassment.

Harassment is most generally described as action/conduct which, according to a reasonable person, is considered to be offensive and harmful in all or one of the following ways: psychologically, physically, economically or intellectually. This would most probably result in damage being suffered by the victim. Furthermore, harassment would include acts such as spying on the person, following the person or even sending continuous SMSs, emails and letters which have the effect of duress or of blackmailing another person.

A fine distinction has to be made between messages sent during the midnight hours that would merely be indicative of a confession of love, and messages sent during the midnight hours which amount to sexual harassment that causes embarrassment.

The commencement of the new Act also ensures that “cyberbullies” can be charged and brought to book before causing harm to others. Cyberbullies are considered to be those who place explicit videos or photos of others on social networks without their permission.

This brings us to the most feared form of harassment, namely the harassment of your child. This can occur by way of threats against your child, or even confrontations which place the child in uncomfortable situations and which can be traumatising to the child. The Act provides that the parent of such a child may now obtain a protection order against the wrongdoer in order to ensure the general wellbeing of the child.

The Act even makes it possible to obtain a protection order against harassment where the wrongdoer is unknown. The Police will be ordered by the court to conduct an investigation into the matter in an attempt to ascertain the identity of the wrongdoer. This is a vital part of the Act and is indicative of the other very important driving force behind the enactment of the Act.

Due to the fact that technology is developing so rapidly, electronic harassment has become very popular, especially with schoolchildren. It is a powerful way of causing duress and intimidating another person. In this case, where the identity is not known, the court will also order the service provider to reveal the identity of the wrongdoer.

The new Act was designed to also target electronic harassment by means of the same quick application for an order that applies to general harassment.

The procedure to obtain a protection order is as follows:

  1. When a person is being harassed, the victim must merely go to the nearest magistrate’s court (it must be in the vicinity in which the act of harassment took place or in the vicinity of the wrongdoer’s residential address), and complete an affidavit under oath.
  2. Important to note is that the order will only be a temporary order and it will only be granted should the action cause the victim to suffer damages or harm.
  3. An application for a final protection order will be the next step. It will be served on the wrongdoer, notifying him/her of the date on which the application for the final order will be heard.
  4. Should such an order be made final and the wrongdoer fails to comply with the provisions thereof, the police may be called upon for help. In this case the wrongdoer will be arrested and will be punished with a fine and/or imprisonment not exceeding 5 years.

Should a person lay a false charge of harassment, such a person may be charged in the same way as set out above.

In conclusion …

The purpose of the new Act is to stop harassment. In most of the cases until 27 April 2013, the victims were left with no options, but now the Act makes provision for anyone who cannot afford legal assistance to seek an order for protection from harassment for himself/herself and his/her children.

Our Constitution exemplifies that the child’s best interest is of utmost importance in any matter, and therefore harassment of any child will be considered to be serious.

It is the duty of every person to protect himself/herself as well as his/her child from harassment by simply reporting to the clerk of the nearest magistrate’s court in order to obtain a protection order.

The new Act strives to make protection from harassment a reality through a process that is much faster and easier than in the past.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Should I use a protection order or a harassment order?

There are people who suffer emotional and physical abuse on a daily basis but are not quite sure what they can do to prevent it. There are two options available to them. They can either apply for a protection order or apply for a harassment order. However, many people do not know the difference between the two and which order would suit their situation.

What is a protection order?

A protection order is described as being a form of court order that requires a party to do or to refrain from doing certain acts. These orders flow from the court’s injunction power to grant equitable remedies in these situations. The following is required to be present when applying for a protection order:

  1. Need to show a pattern of abuse.
  2. It has to be a form of domestic violence, which includes:
  3. Physical violence
  4. Sexual violence
  5. Financial violence
  6. Emotional/verbal violence
  7. The violence needs to be directed at the person who wants to make the application.

A protection order forms part of the Domestic Violence Act. This means that the abuse needs to be between persons that live in the same house, like brother and sister, or mother and father, etc. An application is made for a protection order and thereafter a return date is set. At the return date the applicant can change their mind and ask that the order be removed. If not, the order is granted, and it is binding for life. If the respondent breaches the protection order, he/she may receive up to five years’ imprisonment. If the applicant applies for a protection order under false pretences the applicant may receive up to two years’ imprisonment.

The application for a protection order is an ex-parte application, which means that the application can be made without having the respondent at court. This can cause problems in the instance where the respondent is innocent, but does not have a chance to defend himself/herself.

What is a harassment order?

If you’ve been the victim of abusive or threatening behaviour by someone other than a person living with you, or with whom you have a domestic relationship, it may be harassment. There are different things you can do if you’re being harassed, such as applying for a harassment order. The following is important to know about harassment orders:

a) No pattern is needed, and a first offence can be sufficient for a Harassment Order.

b) No relationship is required, and it can be against someone you don’t even know.

c) No violence is required.

d) Harassment includes: following, messaging, unwanted packages, letters, psychological harm, physical harm, financial harm, etc.

If you decide to apply for a harassment order without knowing who it is against, the court has the power to order a police official to investigate the matter. The application for a harassment order takes place in open court, which means that it is not private. This can sometimes prevent victims from making the application. Once a harassment order is granted, it is binding for five years. If the applicant wants to withdraw the order, the court must be satisfied that the conditions have changed. Breach of a harassment order can result in five years’ imprisonment, which is the same punishment for applicants who make the application under false pretences.

It is important to know that there are remedies available to victims who are in abusive relationships. Whether it is emotional, physical or financial abuse by someone you know or stalking and harassment by someone you don’t know.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)