By Siya Makunga
In our previous chapter, we provided a guideline on how to prepare an application for a protection order. In this article we will discuss the process that unfolds in Court when a Complainant lodges an application with the Clerk of the Court. The Court must as soon as reasonably possible consider an application for a protection order.
After considering the application, the Court may either grant an Interim Protection Order or issue a ‘Notice to Respondent to show cause why a Protection Order should not be issued’. A return date is included in both above documents.
Service of the Interim Protection Order or Notice to Respondent to show cause
When the court issues an Interim Protection Order or Notice to Respondent to show cause, the Complainant will be notified of the outcome. The Clerk will create a bundle of documents, which includes certified copies of the application for a protection order and a record of any evidence that was used. If an Interim Protection Order is granted, it will form part of the bundle. The Interim Protection Order or ‘Notice to Respondent to show cause’ must be served on the Respondent. The Clerk of the Court, or the Sheriff of the Court or a peace officer are authorised to serve the above bundle on the Respondent.
To note: When the Interim Protection Order is served on the Respondent, it becomes enforceable. It is important that the Respondent is made aware of the terms of the Interim Protection Order. If the Respondent does not receive the Interim Protection Order, they cannot be prosecuted for a breach of the terms of the above Order.
The Act states that a Complainant has the right to report non-compliance with the terms of an Interim Protection Order at any police station in the Republic of South Africa. The service of an Interim Protection Order on Respondent enables the Complainant to exercise their rights and enforce the protection afforded by the Court.
An Interim Protection Order remains in force until it is set aside by a competent court.
The return date in Court
The return date is a future date on which the matter will be heard in Court when both the Complainant and the Respondent are granted an opportunity to present their case and provide evidence. The parties have the right to be legally represented at these proceedings. Evidence may be produced orally or by written affidavits. The parties may call witnesses to support their case.
The return date may not be less than 10 Court days after service of the above documents on the Respondent. It is possible for the return date to be brought forward on the written request of the Respondent, provided that the Complainant and the Court is given at least 24 hours’ notice.
If an Interim Protection Order is granted on the first Court date, the Complainant will present their case in Court, and bears the onus to prove:
The existence of acts of domestic violence perpetrated by the Respondent;
The imminent harm they will suffer should the court not grant a Final Protection Order; and
The Complainant’s need of protection from harm.
If the Court issued a ‘Notice to the Respondent to show cause why a Protection Order should not be issued’, the Respondent must:
Defend him/herself and provide evidence that they have not committed the acts of domestic violence alleged in the application; and
Show that should the court grant the Protection Order, the Respondent will suffer undue prejudice.
It is crucial that the Complainant and Respondent attend Court on the return date. The Domestic Violence Amendment Act (Amendment Act) stipulates the following consequences for non-attendance by the parties:
If the Respondent does not appear in Court to defend the matter on the return date, and the Court is satisfied that there was proper service of the Interim Protection Order or ‘Notice to show cause why a Protection Order should not be issued, and the application contains sufficient evidence of acts of domestic violence, then the court must issue a Final Protection Order in the absence of the Respondent.
If the Complainant is absent in court, then the court will either set a new return date or discharge the matter.
Warrant of Arrest
Upon issue of an Interim or Final Protection Order, the Court must authorise the issue of a warrant for the arrest of the Respondent, and the Court will suspend the execution of such warrant subject to compliance with the terms of the Protection Order. This means the Respondent will only be arrested if they fail to abide by the order of the Court contained in the Interim or Final Protection Order once it has been served upon them.
In our next article we will discuss the Final Protection Order, the legal consequences of violating a Protection Order and the variation or setting aside of a Protection Order.
