DOMESTIC VIOLENCE

Domestic violence in South Africa is governed by the Domestic Violence Act 116 of 1998, as amended, and includes far more than physical assault. A complainant may apply for a protection order at a magistrate’s court with jurisdiction; an urgent interim order may be granted before the respondent is heard, while a final order creates enforceable restrictions backed by a suspended warrant of arrest.

What the Law Calls “Domestic Violence”

The Act protects people against patterns of abusive or controlling conduct within a domestic relationship. The Domestic Violence Amendment Act 14 of 2021 broadened the framework further, and the updated law expressly recognises conduct such as coercive behaviour, controlling behaviour, exposing a child to domestic violence, elder abuse, related-person abuse, sexual harassment and spiritual abuse.

Examples of conduct covered by the Domestic Violence Act

Form of abuse	What it may include
Physical abuse	Assault, attempted assault or conduct causing bodily harm.
Sexual abuse	Sexual conduct without consent, including conduct that may also constitute an offence under the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007.
Emotional, verbal or psychological abuse	Repeated humiliation, threats, degradation, isolation or conduct that causes psychological harm.
Economic abuse	Unreasonably withholding money or necessities, controlling access to financial resources, interfering with employment, or disposing of shared property without consent.
Intimidation, harassment or stalking	Following, monitoring, repeatedly contacting or threatening a person, directly or through someone else.
Property damage	Destroying or threatening to destroy belongings, a home or other property in which the complainant has an interest.
Other controlling or abusive behaviour	Conduct that harms, or may cause imminent harm to, the complainant’s safety, health or wellbeing.

Who the Law Protects — “Domestic Relationship”

A protection order is available only where the complainant and respondent are connected by a domestic relationship as defined in section 1. This includes current or former spouses, including customary-law marriages and civil unions; people who are or were engaged, dating, or in a romantic, intimate or sexual relationship; parents of a child; relatives by blood, marriage or adoption; and people who share or recently shared a residence. Marriage is not required.

A child may be a complainant. Another person may apply on a complainant’s behalf where the Act permits it, usually with written consent unless the complainant is a child or cannot provide consent. Burger Huyser Attorneys’ Family Law practice expressly includes domestic violence and protection-order matters.

The Protection Order — What It Is and What It Does

A protection order is a civil court order, but breaching it is a criminal offence. The conditions must be tailored to the risk identified in the application. Depending on the facts, a court may:

• prohibit domestic violence, threats, contact, harassment or communication through third parties;
• bar the respondent from the complainant’s home, workplace, school or another specified place;
• exclude the respondent from a shared residence or a defined part of it;
• direct payment of emergency monetary relief, which may include household expenses, rent or mortgage commitments;
• regulate or refuse contact with a child where protection is required;
• prevent interference with personal property; and
• direct SAPS to seize a firearm or dangerous weapon, with any licensing consequences dealt with under the Firearms Control Act 60 of 2000.

When a final order is granted, the court issues a warrant and suspends it while the respondent complies. After a breach, the complainant may give SAPS the warrant and an affidavit describing the contravention. It does not authorise a pre-emptive arrest while the order is obeyed. Burger Huyser’s Family Law department, led by Director Anna-Mi Nel, assists with protection orders and connected family-law proceedings.

The Application Process, Step by Step

1. Go to the correct court. Apply at a magistrate’s court with jurisdiction where the complainant lives or works, where the respondent lives or works, or where the abuse occurred.
2. Complete the current application. Use Form 06 [J480], updated on 7 March 2025. Older references to “Form 2” use superseded regulations. The clerk must explain the process and available relief.
3. Provide the evidence. Record incidents, dates, threats, injuries, messages, photographs, witnesses and the restrictions needed. Identify any immediate danger.
4. Request interim protection if necessary. On prima facie evidence of domestic violence and possible undue hardship without immediate relief, the court may act before notifying the respondent.
5. Arrange service. The interim order and return-date notice must be served as prescribed. The interim order has no force until service.
6. Attend the return date. Both sides may present evidence. If service is proved and the respondent fails to appear, the court may proceed without them.
7. Keep the final order. If the test is met, the court grants the order and issues the suspended warrant. Keep certified copies and record suspected breaches.
8. Report a contravention. Use Form 35 [J608]. Form 34 [J591] requests a further warrant; Form 38 [J649] applies to variation or setting aside.

Interim vs Final Protection Order — Comparison

Feature	Interim protection order	Final protection order
When granted	Urgently, on prima facie evidence and before the respondent is heard.	At the return-date hearing after service and an opportunity to respond.
When effective	After service on the respondent.	After it is issued and served in accordance with the Act.
Duration	Until the return date, an extension or discharge.	Until varied or set aside by a competent court.
Main purpose	Immediate protection pending the full hearing.	Long-term, enforceable restrictions.
Arrest mechanism	The urgent order restrains conduct pending the hearing.	A suspended warrant supports enforcement if the order is breached.

The Police’s Role and Powers

SAPS assistance is available whether or not a protection order exists. Police must explain available remedies, help the complainant access medical attention or a place of safety where reasonably possible, identify the nearest court and assist with a criminal complaint where appropriate.

• Call 10111 in immediate danger.
• A criminal case and civil protection-order application may proceed together.
• Police may arrest without a warrant where ordinary criminal-law requirements are met.
• After a final order is breached, SAPS considers the warrant and contravention affidavit under the Act.

An attorney does not replace emergency services. Burger Huyser can help prepare evidence and papers, but anyone in immediate danger should contact SAPS first.

What the Court Cannot Do — Limits of the Act

A protection order addresses immediate safety and specified abusive conduct; it does not finally resolve every family-law dispute.

• It does not dissolve a marriage or civil union. Divorce proceeds separately under the Divorce Act 70 of 1979.
• It does not transfer ownership of a house or other immovable property.
• Protective child-contact conditions do not replace final care, contact or guardianship orders under the Children’s Act 38 of 2005.
• It does not replace a criminal prosecution for assault, rape, malicious injury to property or another offence.

Domestic Violence and Children

A child can seek protection in their own right, and an authorised adult may apply on a child’s behalf. The amended law also recognises exposing a child to domestic violence as a form of abuse. A protection order may prohibit contact with the child or impose protective conditions, but lasting decisions about parental responsibilities and rights are made under the Children’s Act or in related divorce proceedings. Courts must coordinate overlapping orders so that the child’s safety and best interests remain central.

Criminal-Law Overlay

Domestic violence may also amount to assault, assault with intent to cause grievous bodily harm, attempted murder, rape or another sexual offence, malicious injury to property, or crimen injuria. The protection-order case and criminal case are independent: the complainant does not have to wait for an arrest or prosecution before applying, and a prosecution does not automatically cancel a protection order. Burger Huyser’s multi-specialist practice includes both Family Law and Criminal Law, enabling related proceedings to be assessed without confusing their different purposes.

Safety Planning and Where to Get Help

A court order is one part of a safety plan. Where safe, preserve messages and photographs, record dates and witnesses, identify a safe destination, and keep identification, medication, children’s documents, money and court papers accessible. Do not disclose a plan if that could increase danger.

Official and government-listed support resources

Resource	Contact or assistance
SAPS emergency service	10111 for immediate police assistance.
Gender-Based Violence Command Centre	0800 428 428, available 24/7; request a social worker via *120*7867#; SMS “help” to 31531 for persons with disabilities.
People Opposed to Woman Abuse (POWA)	The official government assistance directory lists 011 642 4345 for counselling, legal support and temporary shelter.
Thuthuzela Care Centres	One-stop facilities for survivors of sexual violence, including medical care, counselling, help opening a police case and court preparation.
SAPS FCS units	Specialist Family Violence, Child Protection and Sexual Offences investigators at designated stations.

If you need help applying for, enforcing or responding to a protection order, Burger Huyser Attorneys’ Family Law team can assist with the application, supporting affidavit and related divorce, care, contact or maintenance issues. Contact the Linden head office on 011 888 0246 or 061 516 6878 after hours. In an emergency, call SAPS on 10111 or the Gender-Based Violence Command Centre on 0800 428 428 before calling the firm.

Frequently Asked Questions

What counts as domestic violence under South African law?

The Act covers physical, sexual, emotional, verbal, psychological and economic abuse; intimidation, harassment, stalking and property damage; coercive or controlling behaviour; and other harmful conduct within a domestic relationship. Physical assault is not required.

Who can apply for a protection order?

A person in a qualifying domestic relationship may apply. This includes current or former spouses or partners, parents of a shared child, relatives and people who share or recently shared a residence. A child may apply, and another person may act on a complainant’s behalf where the Act allows it.

Do I have to wait for the abuser to be charged with a criminal offence before applying for a protection order?

No. The civil protection-order process is independent of a criminal case. You may apply without laying a criminal charge, or pursue both remedies at the same time.

How long does it take to get a protection order?

An interim order may be granted urgently, including on the day of application, if the statutory test is met. The final order follows at the return-date hearing; timing varies with service, the court roll and whether the application is opposed.

What happens if the abuser ignores or breaks the protection order?

Breach is a criminal offence. Give SAPS the suspended warrant and an affidavit describing the contravention. A convicted respondent may face a fine, imprisonment for up to five years, or both, depending on the applicable provision and sentence.

Can a protection order force the abuser to leave the shared home?

Yes. The court may exclude the respondent from the shared residence or part of it where the statutory requirements are met. The order may also include emergency monetary relief relating to household needs, rent or mortgage commitments.

Does the Domestic Violence Act apply if I am not married to the abuser?

Yes. Marriage is not required. The definition includes several current and former intimate, family and shared-residence relationships.

Can I apply for a protection order on behalf of my child?

Yes. A child may be a complainant, and an adult may apply on the child’s behalf under the Act. The evidence should explain the risk and the protection the child needs.