Protection Orders vs Restraining Orders | What Is The Difference?

In South Africa, a protection order is a civil remedy granted by a Magistrate’s Court under the Domestic Violence Act 116 of 1998; breaching it is a criminal offence under section 17 of the Act carrying a fine or up to five years’ imprisonment. A restraining order is typically granted by the High Court as part of a divorce, parenting, or other civil dispute, and breach is dealt with as contempt of court. The two overlap in everyday vocabulary but sit in different courts, rest on different statutory bases, and carry different consequences for non-compliance.

At a Glance: The Two Orders Compared

Feature	Protection Order	Restraining Order
Purpose	Calm and prevent domestic violence within a domestic relationship	Regulate specific conduct tied to a divorce, parenting, maintenance, or other civil dispute
Source	Domestic Violence Act 116 of 1998	Common law and the High Court’s inherent jurisdiction (often in family disputes)
Court	Magistrate’s Court	High Court (Gauteng Division, sitting in Johannesburg or Pretoria, depending on the parties)
Who can apply	Anyone in a “domestic relationship” as defined in the DVA	Any party in an existing or contemplated High Court action, or a person with a clear cause of action
What triggers it	An act of “domestic violence” as defined in the DVA	A cause of action in divorce, parenting, maintenance, harassment, or another civil dispute
Speed	Interim order available on the day of application, sometimes without notice to the respondent	Usually requires an urgent application; can be granted ex parte in genuine emergencies
Form of order	Statutory prohibitions tailored to the complainant’s circumstances	A common-law interdict (do or do not do X), often with a penal clause setting a sum payable per breach
Breach	Criminal offence under section 17 of the DVA — arrest without warrant contemplated, punishable by a fine or up to five years’ imprisonment	Contempt of court — punishable by committal, fine, or attachment of property under the penal clause

What a Protection Order Is

A protection order is created by the Domestic Violence Act 116 of 1998 (the DVA). The Act defines “domestic violence” widely — physical, sexual, emotional, verbal and psychological abuse, economic abuse, intimidation, stalking, harassment, damage to property, and entry into a complainant’s residence without consent — and defines a “domestic relationship” to cover spouses, ex-spouses, dating partners, parents of a child, family members, same-sex partners, and people who share or shared a residence.

A protection order is granted by a Magistrate’s Court in the area where the complainant lives or works, where the respondent resides, or where the cause of action arose. It proceeds in two stages:

• Interim protection order — granted by the clerk of the court or magistrate on the day of application, valid until the return date, and capable of being issued without notice in urgent cases.
• Final protection order — issued after the respondent has an opportunity to show cause, and may include prohibitions on violence or contact, an order to vacate a shared residence, an order preventing the respondent from approaching the complainant’s workplace, and a “no-contact” order.

What a Restraining Order Is

A “restraining order” is not a single statutory creature. The phrase describes two related but distinct High Court orders:

• A common-law interdict with a penal clause — granted by the High Court as part of a divorce, maintenance, or parenting dispute, restraining a party from doing something (approaching, disposing of assets, removing a child from the jurisdiction), with a penal clause that becomes payable on breach.
• An interim interdict pendente lite — granted while the main case is still running, on the same common-law footing, usually without notice.

Civil restraining orders are also used outside the family context — for example, in harassment or stalking claims against a person outside a domestic relationship. These are typically granted by the High Court as interdicts, not under the DVA. A “restraining order” against an accused in the criminal-law sense (under the Criminal Procedure Act 51 of 1977) is a separate concept.

When Each One Is the Right Tool

A protection order is the right tool where the relationship is a “domestic relationship” as defined in the DVA and the conduct falls within the Act’s wide definition of “domestic violence.” A restraining order is the right tool where the dispute is principally about conduct tied to a divorce, parenting, maintenance, or non-DVA civil dispute, or where the respondent is not in a “domestic relationship” with the applicant. The two often need to be used together: where a divorce is pending and the same spouse is committing domestic violence, the complainant may need a protection order for immediate safety and a High Court interdict to govern the divorce process. A complainant who does not qualify for a DVA protection order may still approach the High Court for an interdict against harassment.

How to Apply for a Protection Order

1. Apply at the Magistrate’s Court where the complainant resides, works, or where the cause of action arose — the clerk of the court is the first point of contact.
2. Complete the prescribed form (Form 5 in the DVA regulations) and support it with a sworn statement setting out the acts of domestic violence.
3. Ask the clerk of the court for an interim protection order on the same day; a magistrate may convert it to a final protection order if unopposed.
4. If the respondent opposes, the matter is set down for a return date when the respondent can show cause why the final order should not be granted.
5. Service on the respondent is done by the sheriff or clerk; once served, the order is binding and breach is a criminal offence.

The application is free of charge. Burger Huyser Attorneys’ family law practice — anchored by Director Anna-Mi Nel at the Linden head office and the Sandton branch — routinely coordinates protection-order applications with concurrent divorce, maintenance, or parenting proceedings from a single set of facts.

How to Apply for a High Court Restraining Order

A High Court restraining order is filed either as part of the main action (the divorce, maintenance, or parenting dispute) or as an urgent interlocutory application. The applicant files founding and supporting affidavits, a practice-compliant application, and often a rule nisi or interim order granted on an ex parte basis pending the return date. The substantive test is the classic common-law interdict: a clear right, an injury actually committed or reasonably apprehended, and the absence of a similar remedy in another court. A penal clause is typically added to give the order teeth; the amount is agreed or set by the court and becomes payable on breach, separately from any contempt finding.

Where to File in Gauteng

The Gauteng Division of the High Court sits in both Johannesburg and Pretoria, and either seat is competent for an urgent interdict application depending on the parties’ residence and the cause of action. A High Court matter is not the right venue for a DVA protection order, and a Magistrate’s Court is not the right venue for a common-law interdict.

Burger Huyser Attorneys’ Pretoria (Menlyn) and Centurion branches handle instructions on the Pretoria seat; the Sandton branch covers the Johannesburg seat; the Linden (Randburg) head office and the Roodepoort branch cover the western Gauteng Magistrates’ Courts. The Linden office (011 888 0246) is the practical first point of contact for a query about which order applies to a given set of facts, and the firm can refer the matter to the appropriate branch. The Department of Justice and Constitutional Development’s service guide (justice.gov.za) is the authoritative public-facing source on the protection-order process.

Common Confusions

• “Restraining order” used loosely to refer to any order against a person — the term is colloquial and the source of most confusion; careful drafting refers to the specific statutory or common-law order actually granted.
• Using a protection order against a non-domestic relationship (for example, a colleague) — the DVA only applies to a “domestic relationship” as defined; for non-domestic harassment, an interdict in the High Court is the appropriate remedy.
• Believing a restraining order automatically results in arrest — a common-law restraining order is enforced through contempt of court, not by the police; a breach is reported to the court.
• Confusing a criminal-law “restraining order” (imposed under the Criminal Procedure Act 51 of 1977) with a family-law restraining order — they arise from different courts and have different effects.

What to Do If You Are Experiencing Domestic Violence

Apply at the Magistrate’s Court for a protection order — applications are free of charge, and many courts have dedicated family-violence clerks. The DVA’s wide definition of “domestic violence” includes non-physical conduct (emotional, verbal, psychological, economic, and harassment-type conduct), so a protection order is available even where there has been no physical violence. The DVA also contemplates a protection order being made in addition to any other legal remedy.

Frequently Asked Questions

What is the main difference between a protection order and a restraining order in South Africa?

A protection order is a statutory remedy granted by a Magistrate’s Court under the Domestic Violence Act 116 of 1998, and breach is a criminal offence under section 17. A restraining order is typically granted by the High Court as part of a divorce, parenting, or other civil dispute, and breach is enforced as contempt of court. They sit in different courts, rest on different statutory bases, and carry different breach consequences.

Who can apply for a protection order?

Anyone in a “domestic relationship” as defined in the DVA — spouses, ex-spouses, dating partners, parents of a child, family members, same-sex partners, and people who share or shared a residence — provided the conduct falls within the Act’s wide definition of “domestic violence.”

Is a protection order a criminal charge?

No — the order itself is a civil remedy, but breach is a criminal offence under section 17 of the DVA, punishable by a fine or up to five years’ imprisonment. A complainant can also pursue a separate criminal charge for the underlying act of violence.

Can I get a restraining order without a divorce or other case?

Yes — the High Court can grant an interdict restraining a person from harassing or stalking you, even outside a domestic relationship. This is a common-law interdict; breach is dealt with as contempt of court, and a penal clause is often added to give the order teeth.

How long does a protection order last?

Until set aside by the court on proper application. The DVA imposes no fixed expiry, but the order may be varied or discharged if circumstances change.

What happens if the respondent breaches a protection order?

The respondent may be arrested without a warrant and is liable on conviction to a fine or up to five years’ imprisonment under section 17 of the DVA. Report the breach to the police and the Magistrate’s Court that issued the order; the docket is handled by the National Prosecuting Authority.

Do I need an attorney to apply for a protection order?

No — applications are free at the Magistrate’s Court and the clerk of the court can help with the form. An attorney is useful where the matter is contested, where the complainant fears retaliation, or where there are concurrent divorce or maintenance proceedings to coordinate.

If you are unsure which order applies to your situation — or you are dealing with domestic violence and want to understand the protection-order process in parallel with a divorce or maintenance dispute — the Family Law team at Burger Huyser Attorneys can help you work out the right route. The head office is in Linden, Randburg (011 888 0246), with branches across Gauteng including Pretoria (Menlyn), Centurion, Sandton, Bedfordview, Alberton, Roodepoort, and Midrand. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”). The DVA allows a protection-order application at a Magistrate’s Court free of charge, without an attorney — coordinated advice is most useful where the matter is contested or overlaps with a divorce, parenting, or maintenance dispute.