Protection from GBV
South Africa is in crisis. We have witnessed an unconscionable rise in gender-based violence (GBV) cases in recent years. These incidents were made even worse during the COVID-19 lockdown period. Restrictions of mobility left a great number of mostly women, confined with their abusers, secluded from their social and support systems. Whilst the social illness that is gender-based violence must be tackled, we hope that this article will help GBV victims by highlighting ways in which the criminal justice system can be utilised in their favour.
Protection Orders
A protection order provides a victim of harassment a functional remedy against varying forms of unlawful conduct and establishes measures that seek to provide victims of harassment with legal protection from their abusers.
How to get a protection order
A complainant must first approach the Domestic Violence section of the Family Court and complete an application form for a protection order. The clerk of the court will hand the application together with any relevant annexures to a Magistrate for consideration. The Magistrate will either issue a notice to show cause or issue an interim protection order. The latter will be issued if the Magistrate is satisfied that there is sufficient evidence that the respondent is committing or has committed an act of domestic violence and/or harassment and that undue prejudice may be experienced by the complainant if an interim order is not immediately issued. Should an interim order be granted, this will provide instant protection to the complainant.
The interim order
An interim protection order is not enforceable if it has not been served properly on a respondent. Service means that the respondent is handed a copy of the interim order so that he/she has knowledge that such an order has been granted.
It is important to note that an interim protection order is not final, but it is a temporary order which affords a complainant with immediate relief up the date on which the complainant and the respondent, after being given due notice, are to present themselves before court to have the protection order made a final order. On the date of hearing, the respondent is provided an opportunity to present argument to the court and provide reasons as to why the protection order should not be made final. Similarly, the complainant is entitled to argue as to why the interim order should be made final.
The final order
The Court may, by means of a protection order, including an interim protection order, prohibit the respondent from: -
engaging in or attempting to engage in harassment;
enlisting the help of another person to engage in harassment; or
committing any other act as specified in the protection order.
The court may impose any additional conditions on the respondent which it deems reasonably necessary to protect and provide for the safety or well-being of the complainant or any related person.
Validity
A protection order that is granted by a Magistrate is valid for approximately 5 years. In the event of a breach, a complainant will have to depose to an affidavit detailing the alleged breach by the Respondent and present that to the Domestic Violence Section of the Family Court. A Magistrate will consider the affidavit and decide whether or not to issue a Warrant of Arrest for the alleged breach. An issued Warrant of Arrest must be presented to the Police immediately with a copy of the protection order in order for the Respondent to be arrested.
Criminal cases
It is imperative for you to know that you can lay a criminal charge with or without a protection order if the acts of domestic violence and/or harassment constitute a criminal offence. You do not need to first approach and go through the remedies and procedure under the protection order first. You can institute both proceedings simultaneously.
Conclusion
Whilst these measure may not be ideal, they can be utilised by victims of GBV to ensure they are legally protected in instances where they may be unable to pursue criminal charges or where there are criminal charges pending.