By Siya Makunga
In our previous article, we discussed the hearing for an application for an interim Protection Order. In this article, we will discuss the Final Protection Order, the legal consequences of violating a Protection Order and the variation or setting aside of a Protection Order.
On the return date (the second court date), the court will consider the application. Access to the court hearing is limited to the Magistrate, court staff, parties, legal representatives, and witnesses. Members of the public are not allowed to attend the court hearing. Once the Magistrate has heard the evidence, they will decide whether or not to grant a Final Protection Order.
When the court issues a Final Protection Order, it must be served on the Respondent within 48 hours or as soon as reasonably possible. The Final Protection Order is of force and effect only once the Respondent is aware of the content and existence of the Final Protection Order. The Complainant will receive a certified copy of the Final Protection Order and warrant of arrest.
Note: The Final Protection Order remains in force until it is set aside, and the execution of such an order is automatically suspended upon the noting of an appeal.
Violation of a Protection Order
The Domestic Violence Amendment Act (The Act) states that a Respondent who contravenes the terms of either an Interim or Final Protection Order may be charged with a criminal offence. If the Respondent is found guilty of an offence by the court, they will be sentenced.
The Act provides for the following sentences to be imposed on an offender (Respondent):
- For a first-time offender who has contravened the terms of the Protection Order, the court may impose the payment of a fine or imprisonment for a period not exceeding five years or both.
- If the Respondent violates the Protection Order for a second time or on numerous occasions, the court may impose a fine or a period of imprisonment not exceeding ten years.
- Where a Respondent contravenes the Act by publishing the recording of the court proceedings and the outcome of the matter, the Respondent may be sentenced to a fine or imprisonment of a maximum of two years or both.
- If it is a subsequent conviction for the above offence, the court may impose a fine or imprisonment of a maximum of four years or both.
Variation of a Protection Order
The Act states that the Complainant or Respondent may make a written application to the court to have the Protection Order varied (changed) or set aside (removed). Any party who wishes to oppose such an application must do so within ten days of written notice. This party must serve notice on the Applicant and the court. The notice should state the grounds for opposing the application.
An application for the variation of a Protection Order will be granted only if the circumstances of either party have changed since the above Order was granted. For example, if the Protection Order prohibits the Respondent from entering the Complainant’s residence and the Complainant relocates to another city, the Protection Order needs to be varied to include the new place of residence.
Setting aside of a Protection Order
Either party might want the Protection Order to be set aside if the dispute has been resolved and the Respondent has stopped committing acts of domestic violence.
The court will set aside the Protection Order only if it is satisfied that circumstances have changed materially since the granting of the Final Protection Order and the Applicant has shown good cause for the setting aside of the Protection Order.
Lastly, if the Complainant applies for variation or setting aside of a Protection Order, the court will grant such an application only if it is satisfied that the application was made freely and voluntarily. If the Protection Order is varied or set aside, the Clerk of the Court will notify both parties of the change made.
In our next article, we will discuss the role of players who assist victims of domestic violence.
Siya Makunga is an Attorney
at the Rhodes University Law Clinic.