Everything You Need to Know About Restraint Orders

In South Africa, “restraint order” is used in three legally distinct senses: a protection order issued under the Domestic Violence Act 116 of 1998 by a Magistrate’s Court against a person committing an act of domestic violence; a protection-from-harassment order issued under the Protection from Harassment Act 17 of 2011 against a person who is harassing the applicant, whether or not they are in a domestic relationship; and a restraint order in the criminal-confiscation sense under the Prevention of Organised Crime Act 121 of 1998 (POCA), which freezes the assets of a person reasonably suspected of having benefited from crime. Each has a different application procedure, a different court, and different consequences for breach — confusing them is the most common mistake made by people searching the bare term “restraint order.”

Three Distinct “Restraint Orders” in South African Law

Type	Statute	Court	Purpose	Breach consequences
Protection Order	Domestic Violence Act 116 of 1998	Magistrate’s Court (district where applicant or respondent resides)	Stop acts of domestic violence and grant ancillary relief (e.g. eviction from shared home, no-contact order, order for police assistance)	Criminal offence under section 4(2) — separate from any underlying act of violence, punishable on its own by fine or imprisonment
Protection-from-Harassment Order	Protection from Harassment Act 17 of 2011	Magistrate’s Court (district where applicant resides, carries on business, or works)	Stop harassment conduct outside a domestic relationship (e.g. stalking, persistent unwanted contact)	Criminal offence under section 18 — punishable by fine or up to five years’ imprisonment; civil damages also available
Asset Restraint Order (POCA)	Prevention of Organised Crime Act 121 of 1998	High Court (on application by the National Director of Public Prosecutions or an authorised Director)	Freeze assets reasonably suspected to be the proceeds of crime pending forfeiture	Contempt of court for disposal of restrained property; supports eventual forfeiture under a confiscation order

Protection Orders under the Domestic Violence Act 116 of 1998

The Domestic Violence Act is the primary statutory tool for victims of domestic violence — physical abuse, emotional or psychological abuse, economic abuse, sexual abuse, stalking, or intimidation by a person in a domestic relationship, including a current or former intimate partner, family member, or co-parent.

Who can apply

• Any person who is or has been in a domestic relationship with the respondent.
• A child, with the assistance of a parent, guardian, or other suitable person.
• A counsellor, social worker, or police officer acting on behalf of a child or a person unable to apply personally.

How to apply

An applicant files Form 2 (Application for Protection Order) at the Magistrate’s Court in the district where the applicant or respondent resides, supported by a sworn affidavit setting out the facts of the violence.

Interim order

The magistrate may grant an ex parte interim protection order on the day of application if it appears that an act of domestic violence has been committed and that an interim order is necessary to stop further harm. The interim order is served on the respondent together with a return date for the final hearing.

Final order

A final protection order is granted only after the respondent has been heard (or has failed to attend the return date). The order can include ancillary relief such as eviction of the respondent from the joint home, an order for temporary maintenance, or a direction that a police officer accompany the applicant to collect personal belongings.

Breach

A breach of a protection order — whether interim or final — is a criminal offence under section 4(2) of the Domestic Violence Act, separate from any underlying act of violence. A person arrested for breach may be detained in custody until bail is considered under the Criminal Procedure Act.

Duration

Protection orders remain in force until set aside by the court. An applicant can return to court to extend, vary, or cancel the order if circumstances change.

Protection-from-Harassment Orders under the Protection from Harassment Act 17 of 2011

The Protection from Harassment Act covers harassment outside a domestic relationship — stalking, persistent unwanted contact by telephone, electronic means, or social media, threats of harm, or any other conduct that causes the applicant to fear harm or substantial distress. Because domestic relationships are dealt with under the Domestic Violence Act, this Act is the appropriate remedy where the applicant and respondent are not connected by a domestic relationship, such as a neighbour, colleague, ex-colleague, or acquaintance.

Who can apply

Any person who is being harassed, or any person acting on behalf of an aggrieved person (including a child, an adult unable to act personally, or a legal guardian).

How to apply

An applicant files an application supported by an affidavit at the Magistrate’s Court in the district where the applicant resides, carries on business, or works. The clerk of the court is required to assist unrepresented applicants with form preparation.

Interim order

The court may issue an interim order without notice to the respondent if there is a non-male fide prima facie case of harassment and the applicant will suffer irreparable harm if the order is not granted urgently.

Final order

A final order is granted after the respondent has been heard. The order prohibits the harassing conduct and may include a direction that a police officer accompany the applicant to the shared residence or workplace.

Breach

A breach is a criminal offence under section 18 of the Act, punishable by a fine or imprisonment up to five years. The aggrieved person can also pursue civil damages in the same proceedings.

Duration

A final protection-from-harassment order remains in force for five years from the date of issue, unless extended by the court on application.

Asset Restraint Orders under POCA (Prevention of Organised Crime Act 121 of 1998)

An asset restraint order in the criminal-confiscation sense is an order issued by the High Court freezing a person’s assets pending the outcome of criminal proceedings and any potential forfeiture application. Its purpose is to ensure that the proceeds of crime remain available for confiscation under chapter 5 of POCA, rather than being dissipated while the trial runs its course.

Who is restrained

A restraint order may be made against a person who has been charged with a “specified offence” listed in Schedule 1 of POCA (or any other offence the court treats as generating proceeds) and who is reasonably suspected of having benefited from that offence, or against a person whose assets are reasonably suspected to be the proceeds of such an offence.

Who can apply

Only the National Director of Public Prosecutions, or a Director of Public Prosecutions authorised under section 6 of POCA, may apply for a restraint order. Restraint applications are ordinarily brought by the National Prosecuting Authority’s Asset Forfeiture Unit.

What the order does

The order prohibits the restrained person from dealing with any “restrained property” in a manner that would diminish its value. It can cover moveable and immovable property, financial accounts, business interests, and other assets.

Variation

The restrained person can apply to court for the release of particular property — for example, to fund reasonable legal fees, to meet basic living expenses, or to pay a bona fide third-party creditor — provided the release does not prejudice the underlying criminal proceedings.

End of the order

A restraint order lapses if the criminal proceedings conclude without a confiscation order being made, or it is incorporated into a final confiscation order under chapter 5 of POCA.

Where these applications are heard

Asset restraint applications are made to the High Court. In Gauteng, matters with a local nexus are typically brought in the Gauteng Division of the High Court, sitting at the Pretoria or Johannesburg seat, with parallel provincial divisions sitting in every other province. Because these applications run alongside a criminal trial, they are almost always defended by specialist litigation teams rather than handled personally.

How to Apply for a Protection Order (Step by Step)

1. Approach the clerk of the Magistrate’s Court in the district where you (or the respondent) reside. Most protection-order offices prioritise domestic-violence applications and operate during normal court hours.
2. Complete Form 2 (Application for Protection Order). The clerk will assist unrepresented applicants with the form if needed.
3. Sworn affidavit — set out the facts of the violence or harassment with dates, what was said or done, what injuries or harm resulted, and any corroborating evidence (medical reports, photographs, witness statements).
4. Court hearing for interim order — the magistrate considers the affidavit and may grant an interim protection order ex parte (without notice to the respondent) if violence has been committed and an interim order is necessary.
5. Service on the respondent — usually by the sheriff of the court, who must return proof of service.
6. Return date (final hearing) — the respondent may oppose the application and call witnesses; the magistrate weighs the evidence and either grants or dismisses the final protection order.
7. If granted, the order can include ancillary relief (eviction of the respondent from a joint home, temporary maintenance, an order authorising police assistance when collecting belongings) and remains in force until set aside.
8. Breach — phone the South African Police Service (SAPS) immediately. Breach of an interim or final protection order is a separate criminal offence, and a police officer may arrest without warrant on reasonable suspicion of breach under section 4(3) of the Domestic Violence Act.

Cost, Timeframes, and Where to Get Help

Item	What to expect
Court fees	A nominal filing fee, set by the Magistrate’s Court fee schedule; the fee is often waived for indigent applicants on application to the clerk of the court.
Attorney’s fees	Protection-order applications can be filed without an attorney, but legal representation is helpful if the respondent contests the application or if ancillary relief (eviction, maintenance) is sought.
Timeframe	An interim order can be granted on the day of application in urgent cases. The final order is typically issued within two to four weeks of the return date, depending on court rolls.
Legal Aid South Africa	Provides free legal assistance for protection-order matters to qualifying applicants.
Court-based help desks	NGO help desks at the Pretoria, Johannesburg, and Cape Town family courts assist unrepresented applicants with form preparation.
SAPS FCS units	Family Violence, Child Protection and Sexual Offences units are the first point of contact for an emergency response; the unit can open a docket under the Domestic Violence Act and arrest the respondent if a breach is in progress.

What a Protection Order Cannot Do (Common Misconceptions)

• It does not by itself remove the respondent from the joint home. Eviction of the respondent is an ancillary order, made on application and supported by affidavit, and granted in the magistrate’s discretion.
• It does not automatically deal with maintenance, custody, or division of property. Those are separate proceedings under the Maintenance Act, the Children’s Act, and the Matrimonial Property Act.
• It is enforceable nationally. A protection order issued in one district is enforceable against the respondent across all nine provinces — if the respondent breaches it in another province, the breach is dealt with by the SAPS in the district where the breach occurs.
• It does not by itself guarantee removal from a workplace or contact with the children. Ancillary relief must be specifically applied for and granted.

Why Engage a Specialist for Protection-Order Work

Although a protection order can be filed without an attorney, the cases that most often go wrong are the ones that move from a clean interim order into a contested final hearing, where the respondent denies the allegations, brings counter-evidence, or applies for the order to be set aside. A specialist ensures that the founding affidavit is properly particularised, that corroborating evidence is annexed in admissible form, and that any ancillary relief (eviction, maintenance, police assistance) is specifically pleaded so that it can be granted. Burger Huyser Attorneys’ Family Law Department — headed by Director Anna-Mi Nel — runs protection-order and harassment-order applications through its Bedfordview, Centurion, and other Gauteng branches, with each branch servicing the magisterial district in which it sits.

Frequently Asked Questions

Is a “restraining order” in South Africa the same as a “protection order”?

Not exactly. A protection order is the South African remedy issued under the Domestic Violence Act 116 of 1998 against a person committing an act of domestic violence — and the term “restraining order” is sometimes used colloquially to describe it. However, “restraining order” in the criminal-confiscation sense refers to a separate remedy under the Prevention of Organised Crime Act 121 of 1998 that freezes a person’s assets pending forfeiture. Both are sometimes called “restraint orders” in lay usage, which causes confusion.

How long does a protection order last in South Africa?

A final protection order under the Domestic Violence Act 116 of 1998 remains in force indefinitely until it is set aside, varied, or cancelled by the court on application. A protection-from-harassment order under the Protection from Harassment Act 17 of 2011 remains in force for five years from the date of issue, unless extended. An asset restraint order under POCA remains in force until the criminal proceedings conclude without a confiscation order, or until it is incorporated into a final confiscation order.

What happens if someone breaches a protection order?

Breach of a protection order (interim or final) is a criminal offence under section 4(2) of the Domestic Violence Act 116 of 1998, and breach of a protection-from-harassment order is a criminal offence under section 18 of the Protection from Harassment Act 17 of 2011. A police officer may arrest without warrant if there are reasonable grounds to suspect a breach, and the matter is then dealt with in the Criminal Magistrate’s Court — independently of any underlying act of domestic violence or harassment.

Do I need an attorney to get a protection order?

No — protection-order applications can be filed personally at the Magistrate’s Court, and the clerk of the court is required to assist unrepresented applicants with Form 2 and form preparation. However, an attorney is useful if the respondent contests the application, if ancillary relief (eviction, maintenance) is needed, or if the matter is likely to be defended at the final hearing.

Does a protection order cover economic abuse?

Yes. The Domestic Violence Act 116 of 1998 defines “domestic violence” to include not only physical abuse but also emotional, verbal, psychological, economic, and sexual abuse — as well as intimidation, stalking, and damage to property. An applicant who is being financially controlled, denied access to money, or has their property damaged by a domestic partner can apply for a protection order on that basis.

Can a foreigner or non-resident get a protection order in South Africa?

Yes — the Domestic Violence Act and the Protection from Harassment Act apply to any person within South Africa, regardless of nationality. The application is filed at the Magistrate’s Court in the district where the applicant or respondent resides; the order is enforceable against the respondent regardless of the respondent’s nationality (subject to ordinary immigration-law constraints on enforcement against a foreign national).

What is the difference between a protection order and a peace order?

A peace order historically covered minor disputes under the Criminal Procedure Act prior to the Domestic Violence Act. Since the Domestic Violence Act 116 of 1998, protection orders are the primary domestic-violence remedy, and peace orders remain a separate, narrower remedy under the Criminal Procedure Act for non-domestic disputes. The Domestic Violence Act does not replace the peace-order mechanism but provides a more comprehensive statutory framework for domestic relationships.

If you are facing an act of domestic violence or persistent harassment and need help applying for a protection order, contact Burger Huyser Attorneys’ Family Law Department. The firm takes instructions through the Bedfordview branch (011 201 7190, after-hours 061 536 3223), the Centurion branch (012 644 4990, after-hours 061 516 7117), or any of the firm’s other Gauteng offices; initial consultations confirm eligibility, set out the application path, and (where the application is contested) prepare the file for the final hearing. For criminal-confiscation restraint matters under POCA, the firm’s General Litigation and Criminal Law practices handle instruction in coordination with the Pretoria and Sandton offices. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).