Protection Orders SA: How to Use One (and When You Can’t)

Feeling threatened, harassed, stalked or controlled can leave you unsure about what to do next. In South Africa, a protection order can be an important legal way of stopping abusive or harassing behaviour and protecting you from further harm.

But a protection order is not a weapon to be used simply because you are angry with someone or involved in another legal dispute. The court must be satisfied that the requirements of the relevant law have been met.

South Africa mainly uses two laws for this purpose: the Domestic Violence Act 116 of 1998 (DVA) and the Protection from Harassment Act 17 of 2011 (PHA). The DVA was significantly strengthened by amendments that came into operation on 14 April 2023, expanding the forms of conduct that can amount to domestic violence.

What is a Protection Order?

A protection order is a court order intended to protect someone from domestic violence or harassment.

Under the Domestic Violence Act, a court can make orders aimed at stopping specified acts of domestic violence. Depending on the circumstances, an order can restrict conduct such as contacting the complainant, entering certain places, damaging property, using other people to carry out abuse, or committing other prohibited acts.

Under the Protection from Harassment Act, a protection order is an interdict that can prohibit a person from continuing with conduct that amounts to harassment. The Act specifically provides for interim and final protection orders.

Protection can also cover conduct involving electronic communications, stalking and other forms of unwanted contact where the legal requirements are met.

Which Law Applies?

The Domestic Violence Act generally applies where the people involved have the kind of domestic relationship recognised by the Act.

This can include current or former spouses, people who are or were in dating or other intimate relationships, family members, people who share or shared a residence in a qualifying close relationship, and people who are parents of a child or have or had parental responsibility for a child.

The Protection from Harassment Act provides a remedy against harassment and is particularly important where the parties do not have a domestic relationship covered by the DVA. It can apply to situations involving, for example, neighbours, colleagues or other people who are not in a domestic relationship with the complainant.

Importantly, the PHA does not simply mean that every unpleasant disagreement with a stranger is harassment. The conduct must meet the legal definition of harassment and the requirements for a protection order must be satisfied.

Domestic Violence Is More Than Physical Violence

Many people still think domestic violence only means hitting or physically attacking someone. South African law is much broader.

The Domestic Violence Act recognises forms of domestic violence including:

The expanded law is particularly important because coercive and controlling behaviour can involve forcing or compelling a person to do, or not do, something they have a lawful right to do, or making the person dependent or subservient through conduct such as isolation or regulating their everyday behaviour or movements.

Economic abuse has also been broadened. It can include depriving a person of financial resources to which they are legally entitled, including certain expenses relating to education or rent for shared accommodation.

What About Stalking, Messages and Online Harassment?

The law can address harassment that occurs away from someone’s front door.

The Protection from Harassment Act covers conduct that causes harm or creates a reasonable belief that harm may be caused. This can include unreasonable following, watching, pursuing, accosting or loitering, as well as certain repeated electronic communications.

The law also recognises that harassment can happen through electronic communications and other indirect conduct. A protection order can therefore be relevant where the harassment occurs via phones, messages, or other electronic communications, provided the statutory requirements are satisfied.

Do You Have to Be Physically Attacked First?

No.

A person does not necessarily have to wait until physical violence occurs before seeking protection. The laws recognise several forms of harmful conduct other than physical assault. Under the PHA, for example, an interim protection order can be considered where there is prima facie evidence of harassment, harm is being suffered or may be suffered, and immediate protection is justified.

Under the DVA, the recognised forms of domestic violence include conduct that is not physical, such as intimidation, harassment, economic abuse, spiritual abuse, coercive behaviour and controlling behaviour.

Protection Orders Are Not a Shortcut for Every Dispute

This is where people can get confused.

A protection order is meant to address conduct that falls within the relevant legislation. It is not a general-purpose solution for every argument, debt, business disagreement, family dispute or legal problem.

For example, a person should not assume that a protection order will automatically cancel a lawful eviction process, settle a debt, determine a maintenance dispute or decide parental rights and responsibilities. Those matters can involve other legal procedures and courts.

However, there is an important distinction: the existence of another dispute does not automatically prevent a protection order from being granted. Conduct taking place during a financial, family, employment or other dispute may still amount to domestic violence or harassment if it meets the requirements of the relevant law.

In other words, the court looks at what the person is actually doing, not simply at the label attached to the dispute.

What If Someone Uses a Protection Order to Gain an Unfair Advantage?

A protection order application must have a proper legal basis.

The fact that an application is unsuccessful, however, does not automatically mean that the applicant misused the legal system. Courts consider the evidence and circumstances of each case.

This is why it is important to give the court accurate information and explain the actual conduct complained of. Protection-order proceedings should be based on genuine allegations supported by relevant facts rather than being used simply as leverage in another dispute.

At the same time, having another legal remedy available does not automatically mean a protection order must be refused where the requirements of the legislation are otherwise met. The Protection from Harassment Act expressly addresses the relationship between harassment proceedings and other available remedies.

What Evidence Should You Keep?

If you believe you are being harassed or abused, keep records of what happens.

Save relevant messages, emails, photographs, recordings where lawfully obtained, letters and other documents. Write down dates, times, locations and what happened. Keep details of people who witnessed incidents.

Do not exaggerate or invent details. The stronger approach is to give the court a clear, factual record of what actually happened.

The Department of Justice’s guidance on applying for a harassment protection order specifically advises applicants to provide details of the incidents relied upon and allows supporting affidavits from people with knowledge of the matter.

Can a Protection Order Be Granted Urgently?

Yes, in appropriate circumstances.

The Protection from Harassment Act allows an application to be brought outside ordinary court hours where there is a reasonable belief that the complainant or a related person may suffer harm if the application is not dealt with immediately.

The Act also allows a court to consider an interim protection order without first giving the respondent notice, but specific legal requirements must be met. The respondent is then served and allowed to show why a final protection order should not be issued.

What Happens If a Protection Order Is Breached?

A protection order is a court order and should be taken seriously.

The consequences of breaching an order can include criminal consequences. The Department of Justice states that a person who breaches a protection order issued under the PHA commits an offence and may face a fine or imprisonment.

The precise consequences depend on the order, the legislation involved and the circumstances of the alleged breach.

Don’t Suffer in Silence

A protection order can be a powerful legal safeguard when someone is genuinely facing domestic violence or harassment. South African law recognises that abuse is not limited to physical attacks and can include conduct such as intimidation, harassment, economic abuse, coercive behaviour, controlling behaviour and other forms of abuse covered by the legislation.

But a protection order is not a substitute for every other legal process. The important question is whether the conduct complained of falls within the requirements of the Domestic Violence Act 116 of 1998 or the Protection from Harassment Act 17 of 2011.

If you believe you are being threatened, abused, stalked or harassed, keep the evidence, report the conduct accurately and seek appropriate legal assistance. Your safety comes first, and South African law provides legal remedies for people who genuinely need protection.

Considering a Protection Order?

Contact us today! Our experienced team can assess your situation and guide you through the legal process. We can help you determine if a protection order is the right solution and ensure it’s used effectively.