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Abusing the Protection Order

There has been widespread criticism surrounding the Domestic Violence Act and the granting of a protection order by various legal practitioners recently.  The fact is that many people in their application for a protection order exaggerate incidents of domestic violence in order to get the order granted.

It is very easy to get an interim protection order against somebody.  You have to have been at some stage residing with that person or in a romantic relationship in order to qualify for it.  Such an order is granted on the basis of a single affidavit by the Applicant, and in the absence of the Respondent having even an opportunity to be heard.

Once the interim protection order is granted, a return court date is given where the Respondent has an opportunity to argue his case.  If in breach of the order, the Respondent can easily be locked up. 

The abuse of the protection order often happens.  I represented a client in a divorce matter.  Him and his wife were fighting over a R2 million house.  A protection order was granted after his wife went to court and it was granted.  My client’s version was that his wife had seriously exaggerated the incidents of domestic violence.

His wife then lied to the police and told them he had assaulted her, and was in breach of the order.  He was locked up.  There was no proof of any assault.  But now his wife had the upper hand over him in the divorce matter so she thought, as she had a criminal case against her husband.  This is clearly abuse of the protection order system.

Often protection orders are used by parties as a tool to evict their spouse or to get custody over the children.  The protection order court is the incorrect forum to make custody and eviction orders.  But it does and people manipulate the system in their favour.

I have a case where a man got an interdict preventing his wife from swearing at him.  After the interdict was granted the couple continued to have sexual relations.  This usually means the interdict is no longer of force and effect.

However there was an argument and the wife swore at him.  He then phoned the police and she was locked up.  The police just ignored the fact that the interdict was actually invalid due to the sexual relations subsequent to the interdict being granted.

There was also a battle for custody of the two children in this matter and the man now had the upper hand as the children were living with him now.  His wife may well not have returned to the house after having been locked up.

Police very often make the mistake of locking up somebody when there is no imminent danger.  In terms of the Domestic Violence Act police can only lock somebody up if there is “imminent danger”.  If one party merely swears at another, there is no imminent danger.

Courts should not grant temporary interdicts unless there is a real danger for example that somebody is going to be killed.  Temporary interdicts at the moment are granted too easily.  Further investigation should take place before a temporary interdict is granted.

The Domestic Violence Act should be amended.  Interdicts should not be used to sort out custody matters or to evict a partner.  This is clearly abuse of the system.

Related Articles

Protection Orders

Interim protection orders

Domestic Violence Act

Divorce and the Annexure A affidavit


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