PROTECTION ORDERS IN SOUTH AFRICA: MISUSED OR NECESSARY?

In South Africa, protection orders are an essential component of the legal system that protects people from stalking, harassment, intimidation, and domestic abuse. However, the system is becoming more and more strained, not because it is inadequate, but rather because it is being abused. Although protection orders are crucial for victims who worry about their safety, the legal community is becoming increasingly concerned that they are being misused, particularly in the midst of highly charged conflicts like divorce and child custody battles. In addition to undermining the system's validity, this makes it more difficult for actual victims to get the protection they so desperately need.

The Protection Order's Legal Objective

Whether issued under the Protection from Harassment Act 17 of 2011 or the Domestic Violence Act 116 of 1998, a protection order is meant to give victims of abuse or harassment immediate, temporary relief. After it is granted, the order legally requires the abuser (also known as the respondent) to stop engaging in certain behaviours. It may also include limitations like:

• No communication with the complainant; 

• No access to the complainant's home or place of employment; 

• Refusal to leave a shared residence; 

• No interaction with children, if it is in the best interests of the children.

A violation of such an order is illegal and can lead to instant arrest, guaranteeing prompt protection.

The Application Procedure: Protective, Prompt, and Serious

In order to guarantee that victims can take immediate action when in danger, the application process for a protection order is open and accessible. Usually, the steps consist of:

• Filling out an application and affidavit at a court or police station.

• Providing corroborating affidavits from experts, witnesses, or interested parties.

• A return date for a final decision is set, during which the respondent may contest the case;

• A magistrate considers the application for interim relief immediately; the order is enforceable after it is served.

Crucially, our legislation considers such threats with immediacy and seriousness, as seen by the ability to obtain interim protection orders on weekends and after hours.

The Increasing Issue of System Abuse

Despite the admirable goals of protection orders, attorneys are seeing a concerning trend: protection orders are being used more as tactical instruments than as safeguards.Protection orders are frequently obtained by people for a variety of reasons, including: 

• As leverage in divorce or custody proceedings; 

• To forcibly bar someone from a shared home or child's life; 

• To harm the respondent's image; or 

• As retribution after a heated argument.

The protection order procedure is being weaponised, which damages its reputation and fills court rolls with baseless requests. Additionally, it weakens the court's empathy for actual victims by making magistrates and clerks more severe and cautious, often to the cost of individuals who truly need help.

Effects on Actual Victims

The unfortunate unintended consequence of misuse is that victims of actual abuse now face additional challenges: petitions are examined more closely by courts and police stations; legitimate complainants are treated with suspicion; and interim protection orders are granted more slowly when there is a real threat.

This is especially problematic when it comes to children, as a prolonged exposure to hazardous situations may arise from a delay in providing orders.

An Appeal for Conscientious Use

A protection order is a life-saving legal remedy, not a means of retaliation. Applying for one is simple, but that doesn't mean it's not taken seriously. In addition to unfairly harming the accused, abuse of the process compromises the integrity of the legal system and endangers future victims.

In order to maintain the system's speed, accessibility, and fairness for individuals who actually require protection, applicants and legal counsel must approach this procedure with honesty and discernment.

Preserve the Purpose

Only when applied appropriately do protection orders save lives. To guarantee that the system is maintained as a safeguard for the weak rather than a weapon for the vengeful, the legal community, law enforcement, judiciary, and society at large must cooperate.

Speak with a lawyer right away if you need help requesting a protection order or if you are in danger. We at Gittins Attorneys are dedicated to upholding the rights of individuals in need and combating instances of procedural abuse.