Protection orders are provided for in terms of the Domestic Violence Act (Chapter 5:16) while peace orders are provided for in terms of the Criminal Procedure and Evidence Act (Chapter 9:07). The effect of the two (protection orders and peace orders) is the same and it is to prevent/stop any current or future act, omission or behaviour by the respondent which is prohibited by law. There are however some few differences between the two and where one uses the wrong application it may suffer a stillbirth.
Not everyone can apply for a protection order. For one to be a complainant in terms of the Domestic Violence Act there should be some sort of relationship between the parties for example spouses (former or current), parent-child (in the wider sense), and former and current lovers. A complainant can also be a person who is or has been living with the respondent whether related or not. The Domestic Violence Act also provides that another person can make an application for a protection order on behalf of the complainant. These include police officers, social welfare officers, employer or fellow employee of complainant et cetera. Essentially people who do not live together and are unrelated cannot proceed in terms of the Domestic Violence Act.
The Domestic Violence Act gives a non-exhaustive list of what falls under the ambit of domestic violence. Some of the acts of domestic violence listed are;
- physical abuse
- sexual abuse
- emotional, verbal and psychological abuse
- economic abuse
- malicious damage to property
- unreasonable disposal of household effects or other property in which complainant has an interest
Some of the acts of domestic violence are criminal offences and police officers can arrest anyone who is reasonably suspected to have committed or threatens to commit such acts.
Where an application for a protection order has been made, the court may issue an interim protection order if there is prima facie proof of acts of domestic violence by the respondent and that any delay in issuing the order may result in ‘serious or substantial harm or discomfort or inconvenience’ to the complainant. Such an order is issued without hearing the Respondent. The Respondent will then be heard on the return day before the issuance of a final protection order.
A complainant in a peace order application can be anyone, related or unrelated to the Respondent unlike the complainant in terms of the Domestic Violence Act. Section 388 of the Criminal Procedure and Evidence Act states the circumstances under which one can apply for a peace order. It provides as follows;
“388 Binding over of persons to keep the peace
(1) Where a complaint on oath is made to a magistrate that any person—
(a) is conducting himself violently towards, or is threatening injury to, the person or property of another; or
(b) has used language or behaved in a manner towards another likely to provoke a breach of the peace or assault;…”
A protection order or a peace order should not be granted on the mere asking otherwise some may abuse the procedure to settle personal scores. Thus before granting a protection order or peace order the court will carry out an inquiry (although the word inquiry is not specifically used in the Domestic Violence Act). This may include taking evidence on oath and examining witnesses. The onus is on the complainant to prove the acts of domestic violence or breach of peace. It therefore becomes necessary for the complainant to produce documentary evidence for example medical affidavits and police reports. Where available witnesses can also be called to testify and be examined under oath in favour of the complainant.
As clear from the law it is not only physical acts or threats of physical harm for which one can apply for a protection order or peace order. Thus in dismissing an appeal against a protection order, the court in Moyo v Samuponda HB5/18 made the following finding;
“There was abundant evidence of abuse being perpetrated against the respondent. In fact the appellant is shown to have been a shameless male chauvinist living in the primitive feudalistic rhythm who had no qualms whatsoever with demanding of his wife that once dressed for work every morning she should parade in front of him for inspection to check if her dressing met his own standards. A man who has come all the way to this court to defend a warped entitlement to determine how his wife dresses, who she interacts with and to vet all the people that communicate with her on her cellphone and at what time. It is just unthinkable that such things still happen in a civilized modern society.”
If the court issues a protection order it shall also issue a warrant of arrest against the respondent which shall be suspended on condition that the Respondent complies with the order for a period of five years. With regard to the granting of a peace order the court may order the respondent to enter into recognizances, with or without sureties for him to keep the peace towards the complainant and refrain from doing or threatening injury to his person or property.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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