A protection order is a legal instrument
THE Advice Desk for the Abused, which was founded by Professor Anshu Padayachee and Judge Navi Pillay in 1986, has dealt with a large number of cases of domestic abuse in its approximately four decades of existence.
One of the instruments that is used to assist complainants of domestic violence is a protection order. This is a legal instrument, which emanates from the Domestic Violence Act 116 of 1998 and is intended to protect the complainant against any form of abuse that includes physical, sexual, emotional, psychological or economic harassment within a domestic relationship.
Protection Orders
As the protection order was not legally available in the 1980s, activists in the gender-based violence (GBV) sphere resorted to using peace orders to protect complainants. The present equivalent is the harassment order, which refers to anyone who was harassing any individual.
A trustee of the Advice Desk for the Abused, Zubie Seedat, a practising attorney, was directly involved in designing the requirements to obtain a protection order. The Domestic Violence Act now empowers a court to grant a protection order prohibiting the respondent from: Committing any act of domestic violence,
Enlisting the help of another person to commit any such act. Entering any residence of the complainant, provided that this prohibition is in the best interest of the complainant.
If the respondent contravenes any aspect of the order, he/she may be arrested. However, the respondent will be safe from arrest if he or she does not contravene any of the provisions of the protection order.
It is enforceable throughout the country and remains valid and effective until set aside by a competent court. The thinking was that the prospect of arrest will serve as a deterrent against acts of domestic violence and hopefully improve the relationship of the parties.
A moot point is whether, in fact, the possession of a protection order assures the personal safety and security of the complainant.
Advice Desk for the Abused
From 1986, the advice desk has been supporting complainants through its phalanx of volunteer crisis interventionists, some of whom have been survivors of GBV themselves. They have been based at head office on the Westville campus at UKZN and at five court sites at any one time.
The crisis interventionists are often the first people that complainants interact with when they complain about GBV. They are counselling partners who educate the complainants about the rights and duties of the opposing parties, the process and the requirements that must be met before a court grants a protection order, and repercussions of any contraventions of the order.
The other partners are the courts, SAPS and the state in respect of its administration and support of safe houses or shelter partners in the endeavour to end GBV.
The role played by crisis interventionists
Fozi Devraj, a survivor who has been trained by the advice desk and has served it for 24 years, has indicated how important it is to counsel the complainant before she or he takes the serious step of applying for a protection order.
Out of the 60 clients she saw in one month, 40 were seeking protection orders and 10 applied for harassment orders.
The crisis interventionists check whether they are willing to be referred to other family counselling services. If they are amenable to this, they are advised to take advantage of these services.
They are advised to return and apply for a protection order if the counselling fails to achieve its objectives.
The crisis interventionists actively
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assist the complainants in obtaining a protection order of the court.
The role of the court
A magistrate may grant an interim protection order immediately on application if the situation is deemed to be unsafe for the complainant.
She will be expected to return to court and apply for a final protection order. For a variety of reasons, it is sometimes difficult for the complainant and/ or respondent to return to court on the return date, and the complainant thus fails to get a final protection order. The interim protection order lapses if a final protection order is not granted.
The role of the SAPS
The police play the important role of serving the protection order on the respondent and if the order is breached, to affect an arrest in terms of the law. They also have legal responsibilities to assist in placing and transporting complainants to shelters.
It has been reported that on occasion the police are not prepared to assist the complainant because they are unaware of their legal obligations in terms of the Domestic Violence Act. Much more sustained education is required to ensure that complaints about domestic violence are taken seriously.
Confiscating firearms has proved to be particularly problematic.
Some crisis interventionists have reported that even after a protection order is granted, frustrated partners use firearms in their possession to threaten or commit acts of violence against the complainant.
The role of the state in providing safe houses or shelters
If the complainant or their children’s safety is compromised, the police may escort them to a shelter after a crisis interventionist has requested a safe space for them to reside in temporarily. The crisis interventionist ensures that space has been granted and that the complainant is admitted to the facility.
The advice desk’s crisis interventionist responsibilities do not end there. She communicates with the shelter officials to make sure the client is admitted and is safe.
Consistent counselling is provided by the crisis interventionist even while the complainant is in the shelter.
If the protection order is breached in any way, then a warrant of arrest can be served on the respondent.
According to crisis interventionists, it is important to carefully consider the context and circumstances of every complainant.
Factors such as whether there are dependent children, financial dependence and the need for accommodation all need to be considered.
In many of the cases, the granting of a protection order serves to impress upon the respondent the seriousness of his actions.
Despite the existence of an effective legal framework, we are struggling with the scourge of GBV. Thus, if all the partners contribute meaningfully, the safety of the complainant can be secured and the objectives of the protection order realised.
Many organisations, such as the Advice Desk for the Abused, which freely volunteer to help others in need, require more assistance from the public and the state to function effectively.