Category Archives: Protection order

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:

  • Physical violence
  • Sexual violence
  • Financial violence
  • Emotional/verbal violence

3. 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:

1. No pattern is needed, and a first offence can be sufficient for a Harassment Order.
2. No relationship is required, and it can be against someone you don’t even know.
3. No violence is required.
4. 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)

Protection order

A2_bIn this article, we will deal with the manner in which to obtain a protection order, the possible reasons for obtaining such an order, and the consequences of disobeying the order.

A protection order is described as being a form of a 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, and can deal with the following:

  • That someone should not commit any act of domestic abuse.
  • That someone should pay you rent, mortgage, or other monies, such as child support.
  • That someone should hand over firearms or dangerous weapons to the police.

If you feel that you need to protect yourself by applying for a protection order, you must apply to a court which has jurisdiction over the area where you are residing. It is also important to first phone a court and make sure on which days you can apply for a protection order, since many courts only have certain days on which they deal with the application for protection orders, unless the protection order is a matter of urgency and you feel that your life might be at risk.

Before obtaining a final protection order, you need to apply for an interim protection order. To do this, you need to apply at the court. The interim order specifies the date on which the final order will be considered. Once the final order is made, it is permanent and can only be changed by making an application to do so at the court at which it was granted. Once an interim order is granted a copy of the order must be served on the Defendant by either the police or a sheriff of the court. The Defendant then has the opportunity to defend the matter on the return date and the Magistrate has the discretion to either make it a final protection order or not.

Requesting a protection order does not mean that you are laying a charge against your abuser. You do not need to lay a criminal charge in order to obtain a protection order. However, if you are a victim of a type of domestic abuse that is also a crime, you can apply for a protection order, lay a criminal charge, or both. Some examples of abuse that are also crimes include common assault, rape, incest, attempted murder and the abuse of animals.

If your abuser breaches or breaks the conditions of the protective order, he has committed a crime, being in contempt of court. This applies even if the breach is not an actual crime, such as controlling behaviour. If the breach itself involves a crime, such as assault, then the abuser can be charged with both contempt of court and assault. If your abuser, or the person that you have the protection order against, breaches the terms of the order you should phone the police as a matter of urgency. The police will then proceed to arrest him/her.

It is important to take note that as soon as a Magistrate grants an interim protection order, the docket number will be placed in your identity document to ensure that the police are aware of this, if matters turn for the worse. It is also important that you go back to court on the return date, because if you don’t, the Magistrate will remove the interim order and the matter will be struck off the roll.

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)

Bullies beware

A1_bSipho Swart is continually being called gay and other related names by a group of people at the local taxi rank. He was recently pushed to the floor by one of these members of the group. Roelien van der Merwe was distraught when she found out there is a website containing terrible comments about her. It was talking about her weight and said things along the lines that she was dirty. The website invited others to become actively involved with bashing her.

For a long time, victims of harassment (harassment includes abusive electronic communication, stalking and bullying), have battled with behaviour that violated their rights but that was not considered criminal and therefore could not be punished by law.

The long awaited Protection from Harassment Act 17 of 2011 came into operation on 27 April 2013. Under the Act harassment is not limited to physical and verbal abuse. People who receive threats or unwanted attention via social media and text messages may also apply for a protection order.

Who is protected?

The Act makes it possible for anyone who feels harassed to approach the court without a legal representative and apply for a protection order.

A child under the age of 18, without the assistance of his/her parents, or a person on behalf of a child, may apply for a protection order.

If a person is not able to apply for a protection order for himself, another person who has a real interest in stopping the harassment can apply for a protection order on the harassed person’s behalf.

What protection is offered?

The Act allows for a special process by which an initial court order is made without the immediate knowledge of the person who is harassing the complainant. The order is based on the complainant’s side of the matter only. The Court will immediately grant the order where it is satisfied that there is prima facie evidence that the complainant is being or may be harassed and that harm is or may be suffered if the protection order isn’t granted immediately.

A future date is then arranged for the person against whom the protection order is sought to oppose the interim protection order being made a final order of court.

In addition, a protection order can be tailored to the needs of the complainant in his/her specific situation. This means that the court has the power to prohibit a person from engaging in harassment or committing any act specified in the protection order.

A warrant of arrest may be issued at the same time that the protection order is granted. If the person contravenes the protection order by continuing to harass the complainant, that person may be arrested immediately.

Failure to comply with the final protection order is a criminal offence and the transgressor may be liable on conviction to a fine or imprisonment for a period not exceeding five years.

How do I apply for a protection order?

The complainant must apply for a protection order by completing an application form at any magistrate’s court where he/she lives or works or any magistrate’s court where the instigator of the harassment lives or works.

The complainant is required to set out the reasons why a protection from harassment order is sought and to provide detailed descriptions of all incidents of harassment he/she has experienced.

The complainant is also able to request that the specific acts committed by the person causing the harassment be listed in the protection order, as well as to request the court to impose any additional conditions necessary to protect the complainant and provide for his/her safety and well-being.

In order to protect the complainant, the physical home or work address of the complainant will be omitted from the protection order provided to the perpetrator.

Bullies will now think twice before sending sexually offensive and other abusive material, as the long arm of the law will be effective in dealing with those who hide behind anonymity.

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)

Vrywaringskennisgewings

A3_bVrywaringskennisgewings bied beskerming aan eienaars en werknemers van winkelsentrums, stadions, parkeerareas en ander publieke areas. Alvorens hierdie  vrywaringskennisgewings effektief is, moet die kennisgewings aan bepaalde vereistes voldoen. Om verkeerdelik op hierdie vrywaringskennisgewings te steun, kan ʼn baie duur fout wees. Bepaal of die betrokke vrywaringskennisgewing voldoende is om jou en jou werknemers te beskerm.

Vrywaringskennisgewings word dikwels in winkelsentrums, stadions, parkeerareas en ander publieke areas gesien. Hierdie vrywaringskennisgewings word gebruik om die eienaar of werknemers van die tersaaklike area te beskerm, deur hom/haar vry te spreek van aanspreeklikheid, indien ʼn lid van die publiek van hierdie bepaalde area gebruik maak.

Vanuit regspraak blyk dit duidelik dat vrywaringskennisgewings wel afdwingbaar is, indien die kennisgewing op die korrekte wyse toegepas word. Die afdwingbaarheid van die vrywaringskennisgewings blyk duidelik vanuit die onderstaande uittreksel:

Durban’s Water Wonderland (Pty) Ltd v Botha and Another (168/97) [1998] ZASCA 115; [1999] 1 All SA 411 (A)

“If the language of a disclaimer or exemption clause is such that it exempts the proferens from liability in express and unambiguous terms effect must be given to that meaning. If there is ambiguity, the language must be construed against the proferens. (See Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) at 804 C.)”

Volgens regspraak, moet twee belangrike faktore oorweeg word om te bepaal of ʼn vrywaringskennisgewing wel afdwingbaar is.

Eerstens, uit die Durban’s Water Wonderland-saak, is dit duidelik dat die betrokke  kennisgewing slegs effektief is, indien die bewoording van die kennisgewing nie dubbelsinnig is nie. ʼn Definitiewe vereiste is dus dat die kennisgewing duidelik en sonder enige dubbelsinnige bewoording uiteen gesit moet word. Die bewoording moet van so ’n aard wees dat die Verweerder gevrywaar word wanneer die publiek die kennisgewing lees. Dit moet egter bygevoeg word dat enige alternatiewe betekenis aan die kennisgewing nie te wyd geïnterpreteer moet word nie. Daar word dus bloot verreis dat die inhoud en betekenis van die kennisgewing duidelik is aan enigiemand wat dit lees. Hierdie toets word geïmplementeer sodat ʼn vae en dubbelsinnige stelling nie as voldoende beskou word om die publiek te bind volgens die sogenaamde “quasi mutual assent”-leerstuk nie. Hierdie leerstuk is die onderliggende regsbasis wat ʼn persoon bind aan die inhoud van ʼn vrywaringskennisgewing.

Die volgende voorbeelde van bewoording kan oorweeg word: “Die eienaar van die eiendom word hiermee gevrywaar” of “die eienaar, besturende agent en enige ander werknemer word hiermee gevrywaar” In die eerste voorbeeld word slegs die eienaar van die eiendom gevrywaar terwyl die tweede voorbeeld ook die besturende agent van ʼn eiendom asook enige werknemer vrywaar. Die eerste voorbeeld sou nie voldoende gewees het indien die skade aan ʼn lid van die publiek veroorsaak was deur die nalatigheid van ʼn werknemer nie, aangesien werknemers duidelik nie binne die bestek van die kennisgewing geval het nie. Dit is dus belangrik om te verseker dat die inhoud van ʼn vrywaringskennisgewing duidelik, verstaanbaar en voldoende is om alle partye te beskerm wat beskerming nodig het.

ʼn Verder kwessie wat ingedagte geneem moet word, wanneer die afdwingbaarheid van ʼn vrywaringskennisgewing oorweeg word, is die vraag of die kennisgewing duidelik sigbaar is. Die kennisgewing kan slegs afdwingbaar wees indien dit behoorlik vertoon is, sodat lede van die publiek dit gesien het of dit behoort te gesien het. Praktiese kwessies, soos die grootte van die kennisgewing, die afstand tot by die kennisgewing, die sigbaarheid daarvan, die lettergrootte en – tipe en die posisionering van die kennisgewing moet ook in ag geneem word. Hierdie toets word geïmplementeer aangesien die inhoud daarvan slegs binne die kennis van die lid van die publiek beskou kan word, indien die kennisgewing van so aard was dat die publiek dit maklik kon raaksien. Wanneer ʼn vrywaringskennisgewing dus gebruik word, moet die bogenoemde faktore in gedagte gehou word.

Dit is duidelik dat ʼn vrywaringskennisgewing ʼn effektiewe metode van beskerming kan wees, veral wanneer dit gebruik word in areas wat lede van die publiek dikwels besoek. Die gebruik van ʼn vrywaringskennisgewing is egter ʼn potensiële problematiese praktyk, aangesien daar verseker moet word dat die bewoording en plasing van die kennisgewing voldoende is om daarop te steun. Daar word aanbeveel dat ʼn prokureur die bewoording van die kennisgewing moet nagaan, voordat dit in gebruik geneem word.

Verwysingslys

Sake

Durban’s Water Wonderland (Pty) Ltd v Botha and Another (1999) 1 All SA 411 (A)

Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A)

Hierdie artikel is ‘n algemene inligtingstuk en moet nie gebruik of staatgemaak word op as professionele advies nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of vir enige verlies of skade wat voortspruit uit vertroue op enige inligting hierin nie. Kontak atyd jou regsadviseur vir spesifieke en gedetailleerde advies.

Can you apply for a protection order against domestic violence, and what is the meaning of a “domestic relationship”?

A_B1The Domestic Violence Act 116 of 1998 (“the Act”), came into operation on 15 December 1998. The purpose of this Act is to protect victims of domestic abuse. It sets out the procedure for a person to apply to court for a protection order.

Any person applying for this order is referred to as the “complainant” and the person that committed an act of domestic violence is referred to as the “respondent” by the Act.

There is a whole list of what is considered to be an act of domestic violence, and it is not limited to physical violence. Other acts of violence such as emotional, verbal, physiological, economic and sexual abuse are all deemed acts of domestic violence. The list extends the protection to intimidation, harassment, stalking and damage to property.

A “complainant” is any person (including a child in the care of the person), who:

  1. is or has been in a domestic relationship with a respondent and;
  2. who is or has been subjected or allegedly subjected to an act of domestic violence.

The Act requires that the complainant and the respondent have to be or should have been in a domestic relationship. The Act defines a domestic relationship as follows:

“domestic relationship” means a relationship between a complainant and a respondent in any of the following ways:

  1. they are or were married to each other, including marriage according to any law, custom or religion; 
  1. they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; 
  1. they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time); 
  1. they are family members related by consanguinity, affinity or adoption; 
  1. they are or were in an engagement, dating or customary relationship. including an actual or perceived romantic, intimate or sexual relationship of any duration; or 
  1. they share or recently shared the same residence. 

The Act casts the protective net very wide, if the definitions of both domestic violence and domestic relationship are considered.

Recently, the Supreme Court of Appeal delivered a judgement that specifically dealt with the interpretation of the definition of a domestic relationship in the Act. In Daffy vs Daffy (2012) 4 ALL SA 607 (SCA) the court held that the concept of “family” in section 1(x)(d) is extremely wide. More specifically, it was found that the definition of a domestic relationship is written poorly, and that the Act does not give a precise meaning in the definition.

The court held that the Act therefore has to be interpreted in order to clearly define the concepts of “domestic relationship”, “family” and “domestic violence”. In the interpretation of legislation, and this Act specifically, the underlying purpose of the statutory provisions has to be carefully considered and kept in mind. In other words, the reason why this Act was passed by government should be taken into account.

The court considered all the surrounding circumstances to determine whether the complainant’s health, safety and well-being were threatened by the respondent’s acts.

In the judgement, the court remarked on other cases where it was held that a domestic relationship involves persons sharing a common household (people living together under one roof). However, the court held that the legislature must have intended a wider definition, but not so wide as to include a mere blood relationship.

The implication of this judgement is far-reaching.

Every matter will have to be individually considered and the relevant factors taken into account. The definitions in the Act can no longer be interpreted as literally as before the Daffy-judgement.   Every court will have to use its discretion to decide whether the persons are indeed in a domestic relationship and can no longer accept that once they fall under the definition, the Act shall apply mutatis mutandis.

Domestic violence reports will have to be considered more carefully, as the complainant and respondent might not be in a domestic relationship and therefore the Act cannot apply. Those who investigate the claims of domestic violence will have to be alert and attentive to the narrower definition and ensure that the parties are indeed in a “domestic relationship”.

If you are a victim of domestic abuse and require a protection order for your own physical and emotional well-being, you should obtain legal advice sooner rather than later. Assistance by an attorney or legal aid clinic in the correct application for a protection order will ensure that the requirements are duly met and that the necessary and correct information be noted in the application.

A victim may also approach the court in his or her personal capacity. The clerks of the domestic violence court will assist you and should be friendly, empathetic and well versed in the requirements of the legislation.

It is of equal importance to obtain legal advice and representation if a protection order is sought against you, particularly as the process is sometimes abused and because of the dire consequences such an order can have on the criminal record of the respondent.

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.