Protection orders afford extensive protection in many circumstances, however, there are a variety of limitations. Many individuals tend to abuse the process in that they seek the protection afforded by protection orders in areas requiring a different legal recourse entirely. The legislation that governs protection orders are the Protection against Harassment Act no. 17 of 2011 (“PHA”) and the Domestic Violence Act no. 16 of 1998 (“DVA”). The aforesaid pieces of legislation seek to achieve relief of a similar nature by providing protection in instances of insalubrious conduct by a third party. The protection, when granted, acts as a prohibitory interdict, and thus prevents the third party from acting unlawfully.
To rely on the Domestic Violence Act, there must be a domestic relationship between the parties. This means that they should be in a marital relationship, or living together (whether romantically or platonically), or are parents with parental rights and responsibilities and/or simply just family members. If no such domestic relationship exists, one cannot seek recourse in terms of the DVA and will then have to look to the PHA for protection.
LIMITATIONS OF THE DVA AND PHA
The DVA and the PHA both seek to protect one against psychological and physical harassment. The limitation of the aforesaid pieces of legislation arises when a complainant seeks a protection order as a ploy to prevent the respondent from exercising their rights in terms of the law. A good example of this is when a tenant seeks a protection order against a landlord despite the landlord acting well within his rights in terms of the law. This is a clear example of the ways in which individuals attempt to abuse the remedy curtailed in the DVA and PHA.
Section 7(a) of the DVA states that a court cannot refuse to grant a protection order if it is apparent that it can be imposed in terms of another piece of legislation or area of law. An example of the aforesaid is if such protection can be found in terms of Maintenance Act no. 99 of 1989, the court will then grant the order but with a provision that it is for a limited period until such time that the interested party may find recourse in terms of the correct area of law.
It is important to know that you do not need to put up with demeaning conduct in any form and that the DVA and PHA provide you with protection in a variety of circumstances in which your human dignity or bodily integrity may be undermined. These protective measures are available to everyone and thus should be used in any and every instance to which it is applicable.
Should you require assistance with a protection order and the ways in which it can be instituted, do not hesitate to contact BBP Law Attorneys.