Can I get a restraining order against my spouse?
Family lawyers are often approached by clients who request an “interdict” or “restraining order” against their spouse, partner, parent, or any other family member. In our South African law, we do not refer to restraining orders, but rather protection orders.
IF A FAMILY MEMBER OR SOMEONE I HAVE A RELATIONSHIP WITH IS ABUSING ME, WHAT ARE MY OPTIONS?
South Africa’s legal system has exceptional statutory provisions and/or legislation in place, to protect people against abusive relationships. You can apply for a protection order in terms of the Domestic Violence Act, or the protection against harassment act.
To apply for a protection order in terms of the Domestic Violence Act, the parties need to be involved in a domestic relationship. In terms of this act, a domestic relationship arises when you are connected in one of the following ways:
- You are married
- You are in the process of getting divorced
- You have children together
- You lived together
- You were in a relationship
- You are related to one another
- You shared a residence
Domestic violence takes various forms and can include (inter alia) the following: sexual abuse, physical abuse, harassment, stalking, emotional abuse, intimidation, or any other abusive behaviour towards the complainant (the person applying for a protection order).
WILL A COURT GRANT A PROTECTION ORDER, EVEN IF THERE IS NO PHYSICAL HARM?
The answer to the above question is simple. Yes.
Physical abuse is not the only kind of abuse that inflicts harm on a person. In many cases, verbal and/or emotional abuse (such as threats or insults) does more damage to a person than physical abuse would have. Emotional, verbal, and psychological abuse are regarded as a pattern of degrading or humiliating conduct towards another person. This includes insults, name-calling, threats to cause emotional pain, obsessive possessiveness, or jealousy. This should be to such an extent that it constitutes a serious invasion of the applicant’s privacy or integrity.
WHAT TYPE OF EVIDENCE WILL BE REQUIRED TO OBTAIN A PROTECTION ORDER?
To successfully apply for and obtain a protection order the applicant should be able to successfully convince a Court that if they do not grant the protection order, the applicant will suffer or be harmed. In other words, an application should include documentary evidence that proves the alleged abuse. This is where WhatsApp messages, emails, or any other forms of communication where parties communicate with one another are important.
Abusers have the habit to insult their “victims” and then “compliment” them. This is what we refer to as a circle of abuse. The only way you can get out of this circle is if you take the relevant action and seek assistance. No one deserves to be abused and/or harmed, therefore it is vital to be aware of your rights not to be abused.
WHAT IS THE PROCESS TO OBTAIN A PROTECTION ORDER?
- You should approach the Domestic Violence Court and apply for an interim protection order. These Courts are designed in such a manner to provide immediate protection and relief to victims who approach the Court.
- You must ensure that you have sufficient documentary evidence relating to the harassment and/or abuse. If you have any proof of the abuse/harassment (WhatsApp, emails and/or messages etc.) it is important to print enough copies that prove your allegations.
- If you were physically abused, you should take proper pictures of the abuse and also visit a medical doctor and request the doctor to complete a medical form that you can attach to your application (a J88 form).
- The first time you approach the Court, you will complete an application setting out all the details relating to the alleged abuse. To ensure that you obtain an interim protection order, you should be very vigilant whilst drafting your application.
Considering the application:
Your application (containing all the relevant facts and documents you rely upon) will be submitted to the Magistrate on duty and you will wait in the waiting room for the Magistrate’s decision.
As soon as the Magistrate has perused and considered your application, he/she will make an order. The Clerk of the Court will furnish you with the order as received from the Magistrate.
If the Magistrate has a prima facie (on first impression) view that there are signs of domestic violence and/or harassment and that urgent protection is warranted, the Magistrate has the responsibility to issue an interim protection order.
The reason why the order is interim is that it is of such an urgent nature that the Court deems it too urgent to first give notice to the Respondent before issuing the protection order. However, the party against whom the order is granted is awarded an opportunity (on the return date) to oppose the application and to submit reasons to the Court regarding why the order should not be made final.
On the return date, both parties will be entitled to provide their written reasons regarding why a final protection order should/should not be granted. Domestic violence proceedings are conducted in camera, therefore in a closed Courtroom due to the sensitivity of the nature of the proceedings (and the fact that minor children may be involved). The Court will consider all the facts and thereafter make a suitable decision.
If the Court is convinced that a final protection order should be granted, the interim order shall merely be made a final order. Together with the final protection order, the Magistrate will also issue a warrant of arrest to enable the police to arrest the Respondent in the event of a breach of the protection order.
Article by Isabel van den Ende
Associate at Barnard Incorporated Attorneys
ISABEL VAN DEN ENDE