Protection Orders – Breach and Legal Consequences
Arisha Rajaram
What is a Protection Order?
A Protection Order is a Court Order handed down by a Magistrate or Judge at a particular Court. This Court Order may be granted in your absence if the Application was served on the Respondent and the Respondent did not attend Court, or if a Magistrate finds that there are reasons for a Court Order to be granted.
This Court Order would set out specific requirements on what the Respondent can and cannot do concerning the Applicant. It may state that the Respondent cannot attend the Applicants place of employment or may not telephonically contact the Applicant. This would depend solely on what the Applicant alleges in their papers and/or what the Court deems fit.
Breach of a protection
If the Respondent breaches a Protection Order, that becomes a criminal offence. Where there is an alleged breach or where the Respondent fails to act in accordance with the Protection Order, the Applicant may approach the South African Police Service (SAPS).
Steps for the Applicant to follow
In terms of the Domestic Violence Act 116 of 1998 (the Act), the Applicant would need to complete and file an affidavit with the SAPS. A copy of the Protection Order must be handed to the SAPS as well. This would prove that there has been a breach, and to what extent. Everything that the Applicant says in the affidavit is under oath and must be the truth.
Immediate arrest
Where threats of death or injury have been made toward the Applicant, a Court must order the seizure of any dangerous weapons in the Respondents possession or under the Respondent’s control. On receipt of the affidavit, the SAPS will arrest the Respondent if there are reasonable grounds to suspect that the Applicant may suffer imminent harm as a result of the alleged contravention. The Respondent must then be brought to Court within 48 (Forty-Eight) hours or may apply for police bail.
The process to be followed after reporting the breach
Once a criminal case is opened, and the Applicant files his/her affidavit, the SAPS would then either decide to arrest the Respondent or provide them with a date, in the form of a summons, to attend a specific Court on a specified date and time for breaching the Protection Order.
After being charged, the file would be handed to a Prosecutor at the relevant Court. A Prosecutor may not refuse to institute prosecution or withdraw the matter without the Director of Public Prosecutions’ consent.
If the Respondent is found guilty of violating the Protection Order, he/ she may be fined or imprisoned for a period not exceeding 5 (five) years, or both may be imposed depending on the severity of the breach.
What happens if the Applicant falsely accuses the Respondent
If the Applicant wilfully lies under oath or makes a false statement regarding the Respondents conduct or behaviour, he/she may be criminally charged in terms of the Act and could face a 2 (two) year prison sentence if convicted.
For further information, please contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za.
Article Disclaimer
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
