Difference Between Restraining Orders and Protection Orders in South Africa

A protection order in South Africa is granted by a Magistrate’s Court under the Domestic Violence Act 116 of 1998 and is designed to protect a person against an abusive intimate partner or family member, while a restraining order sits under the Prevention of Harassment Act 11 of 2011 and is aimed at a wider range of conduct — harassment by anyone, not just a domestic partner — and is typically sought in either the Magistrate’s Court or the High Court depending on the route. The two remedies are not interchangeable: the correct choice depends on the relationship between the parties, the nature of the conduct complained of, and whether the conduct falls within the statutory definition of “domestic violence” or “harassment.”

This guide walks through both remedies in plain language: what each one is, who qualifies, what the application looks like, what the order can actually require the respondent to do, and what happens if the order is breached. It also explains how to pick between the two routes when both are technically available — a question that often comes up in practice when a complainant faces a mix of domestic abuse and broader harassment from the same person.

What a Protection Order Is

A protection order is a court order issued under the Domestic Violence Act 116 of 1998 (the “DVA”) to protect a complainant against a respondent with whom they have a defined domestic relationship. It is the principal statutory remedy for domestic violence in South Africa and is designed to be quick, accessible, and free of court fees at the entry point.

The DVA defines “domestic violence” broadly. It covers physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, and entry into the complainant’s residence without consent where the parties do not share the residence. The width of this definition is what makes the protection order the more protective route once the relationship threshold is met.

A “domestic relationship” under the DVA includes people who are married, divorced, in a dating or engagement relationship, living together, share a child, are family members, or who have an existing or expected close relationship. The relationship threshold is the key gating test: without it, the PHA route is the correct one (covered below).

Applications are made at the Magistrate’s Court in the district where the complainant resides, works, or carries on business, or where the respondent resides. In Gauteng, this means any of the regional Magistrate’s Court seats (including Johannesburg, Randburg, Roodepoort, Pretoria, and others) can receive the application depending on where the parties are based.

What a Restraining Order Is

A restraining order is a court order issued under the Prevention of Harassment Act 11 of 2011 (the “PHA”) to restrain a person from engaging in harassment of another. It is the more general-purpose remedy: where the DVA is anchored to a defined domestic relationship, the PHA reaches conduct by anyone, against anyone.

“Harassment” under the PHA is similarly broad. It includes watching or loitering near the complainant’s home, workplace or any place frequented by them, repeatedly communicating with the complainant, following the complainant, or otherwise engaging in conduct that causes harm or inspires a reasonable fear of harm. The definitional width allows the order to cover stalking behaviour, persistent unwanted contact, neighbour disputes, and workplace harassment, none of which require the parties to have been in a relationship.

The PHA is not limited to a domestic relationship — it covers harassment by anyone, including strangers, neighbours, acquaintances, or co-workers. Restraining orders under the PHA can be sought in either the Magistrate’s Court (the more common, faster route) or the High Court, where a more urgent or substantial remedy is needed. High Court applications are typically reserved for cases where the Magistrate’s Court route is unavailable, time-critical, or where damages or additional relief are also sought.

Side-by-Side Comparison

The table below sets the two remedies against each other across the dimensions that most often drive the choice of route. Use it as a quick reference, then read the full sections that follow for procedural detail.

Feature	Protection Order (DVA)	Restraining Order (PHA)
Governing statute	Domestic Violence Act 116 of 1998	Prevention of Harassment Act 11 of 2011
Who it protects	A complainant in a defined domestic relationship	Any person subject to harassment (no relationship requirement)
Where it is filed	Magistrate’s Court (district where complainant or respondent resides, works, or carries on business)	Magistrate’s Court or High Court
What it covers	Physical, sexual, emotional, verbal, psychological, economic abuse, intimidation, stalking, damage to property, unlawful entry	Harassment broadly — watching, loitering, repeated unwanted contact, following, conduct causing harm or fear
Standard of proof	Balance of probabilities (the DVA’s lower evidentiary threshold)	Balance of probabilities
Interim order	Interim protection order granted ex parte on the same day as the application, before the matter is called	Interim restraining order granted ex parte on the same day if the court is satisfied there is prima facie evidence of harassment
Final order	Granted after the return date when both parties have had the opportunity to appear and the court is satisfied on the papers	Granted after the return date once the court is satisfied the harassment has been proved
Breach consequences	Breach is a criminal offence — arrest without warrant is permitted, and the matter is dealt with in a criminal court	Breach is enforced through contempt-of-court proceedings — civil contempt, not a direct criminal offence
Duration	Indefinite, until the court orders it to be set aside or cancelled	Indefinite, with the option for the parties to apply to vary or set it aside
Legal aid / cost	The DVA provides for free protection-order applications — no court fees are usually charged	Court fees apply in the Magistrate’s Court; High Court applications attract higher fees
Children included	The court can include a child of the complainant or respondent in the protection order, and grant interim care / contact directions	Children can be mentioned in the order where the harassment affects them, but the DVA protection order is typically the more powerful child-protection vehicle

How Each Application Is Made

Both processes are designed to be accessible without legal representation, though an attorney is engaged in practice for affidavit drafting, complex cases, and High Court routes. The walk-through below shows the typical sequence at each forum.

Protection order (DVA)

1. Apply in person on the prescribed form at the Magistrate’s Court.
2. The clerk of the court assists with completion of the form.
3. The matter is heard by the magistrate on the same day for an interim protection order.
4. The respondent is then served with the interim order and a return-date notice for the final order.
5. If the respondent does not oppose, or fails to appear, a final protection order may be granted.

Restraining order (PHA)

1. Apply on the prescribed form at the Magistrate’s Court through the clerk of the court, or in the High Court via motion application supported by a founding affidavit.
2. An interim order is granted on the same day if the court is satisfied on the papers.
3. The matter is set down for a return date.
4. At the return date, the court hears any opposition and either confirms the final order, varies it, or sets it aside.

What Each Order Can Actually Require the Respondent to Do

Both orders carry a similar menu of prohibitions and directions. In practice, the court will craft the order to fit the specific conduct complained of.

• Prohibit the respondent from committing any of the listed acts of domestic violence or harassment.
• Prohibit the respondent from entering or approaching the complainant’s residence, workplace, or any specific place.
• Prohibit the respondent from contacting the complainant in any way (in person, by phone, by message, through third parties).
• Order the respondent to surrender any firearm or dangerous weapon in their possession.
• In domestic-violence cases, the court may also make a “powers and duties of peace officer” direction, which authorises the police to act on the protection order without a further warrant.
• In harassment cases, the court may attach a “powers and duties of peace officer” direction under the PHA in appropriate circumstances.

Breach of the Order: What Happens

Breaching a protection order under the DVA is a criminal offence — the police may arrest without warrant, and the respondent faces criminal prosecution. The criminal route is the more immediate enforcement lever, which is why the DVA remedy is typically preferred where the relationship threshold is met and the conduct is serious.

Breaching a restraining order under the PHA is enforced through contempt-of-court proceedings — the respondent may be brought back before the court for committal, fine, or imprisonment. The contempt route takes longer to move and depends on the complainant bringing the breach back to court, though it remains a meaningful deterrent for persistent breach.

Practically, this means a protection order is the more powerful immediate response if the complainant thinks the breach is likely to recur, and the police is the more immediate enforcement route. If either order is breached, the complainant should report the breach to the police immediately and keep a copy of the order available. A diary of dates, times, and witnesses helps both enforcement routes.

Which One You Should Use

If the conduct is between people in a domestic relationship (married, cohabiting, dating, family, share a child), the DVA protection order is the default and the more protective route. If the conduct is by someone outside a domestic relationship — a neighbour, a stranger, an acquaintance — the PHA restraining order is the correct route. If both domestic violence and broader harassment are present, the two remedies can run in parallel, and each application is assessed on its own statutory merits.

A legal practitioner is normally instructed to advise on which route applies, to draft the founding affidavit, and to handle the return-date court appearance. At Burger Huyser Attorneys, protection-order and harassment work sits inside the Family Law practice; the team is led by Anna-Mi Nel (Director & Head of Family Law Department; Co-Director, Sandton branch) and is dispatched across the firm’s Gauteng branches, so an appointment can be arranged at whichever branch is most convenient for the complainant.

Common Misconceptions

• A protection order is not the same as a maintenance order, a divorce order, or a custody order — it is a separate, standalone remedy.
• A restraining order is not automatically included in a divorce settlement — it is a separate application under the PHA.
• An interim order has the same legal force as a final order until set aside — breach is actionable from the moment the interim order is served.
• The respondent does not need to be present at the interim-order stage for the order to be granted; the court decides on the papers.
• Both orders are accessible without legal representation, but practical success — particularly at the return-date stage — is significantly aided by an attorney.

Practical Considerations: Cost, Timeline, What to Bring

Three practical levers to plan around before walking into court.

Lever	Detail
Cost	DVA protection-order applications are typically free of court fees; PHA Magistrate’s Court applications attract a modest filing fee; PHA High Court applications are more expensive and the Magistrate’s Court route is the more accessible default.
Timeline	Interim orders are typically granted on the same day as the application; final orders follow after the return date, usually within a few weeks of the interim order being served.
What to bring	ID document; the respondent’s details (full name, ID number if known, address, employment, contact details); a written description of the incidents (dates, places, what occurred, witnesses, photographs, screenshots, medical reports, prior police CAS numbers); and a list of specific orders the complainant is asking for.

Frequently Asked Questions

Can I apply for a protection order if I am not married to the person?

Yes. The Domestic Violence Act covers a wide range of domestic relationships, including dating, engagement, cohabiting, family, and parents who share a child. Marriage is not a requirement, and single applicants, same-sex partners, and ex-partners are all covered.

What is the difference between an interim protection order and a final protection order?

An interim protection order is granted on the same day as the application, on the strength of the complainant’s founding papers and without the respondent being present. A final protection order is granted after the return date, by which point the respondent has been served and given the opportunity to put up a defence. Both have the same legal force and the same criminal-law consequences for breach.

Can I get a restraining order against a stranger?

Yes. The Prevention of Harassment Act 11 of 2011 applies to harassment by anyone, including strangers, neighbours, colleagues, and acquaintances. The application is made to the Magistrate’s Court in the district where the complainant or the respondent resides.

Do I need a lawyer to apply for either order?

Both applications are designed to be accessible without legal representation — the clerk of the Magistrate’s Court assists with the prescribed form and the application is dealt with on the same day. In practice, an attorney is useful for drafting persuasive founding papers, representing the complainant at the return date, and handling any High Court application under the PHA where the matter is more complex.

What happens if the respondent breaches the order?

Breach of a protection order (DVA) is a criminal offence — the police may arrest without warrant and the respondent is criminally prosecuted. Breach of a restraining order (PHA) is enforced through contempt-of-court proceedings, which can lead to a fine or imprisonment. In both cases, the complainant should report the breach to the police immediately and keep a copy of the order available.

How long does the order last?

Both orders are indefinite and remain in force until the court sets them aside or varies them on application by either party. There is no automatic expiry.

Can I get both orders at the same time?

Yes, if the conduct falls within both statutes. For example, a complainant in a domestic relationship who is also experiencing harassment beyond the strict domestic-violence categories can apply for the protection order under the DVA and the restraining order under the PHA in parallel. Each application is assessed on its own statutory merits.

Can a child apply for a protection order?

A child may apply for a protection order through the DVA, with the assistance of a parent, guardian, or the police. The court may also include a child of the complainant or respondent in the protection order.

If you are considering a protection order or a restraining order, or if you have been served with one, the Family Law team at Burger Huyser Attorneys can advise on the correct route, draft the founding papers, and represent you at the return date. The firm’s Family Law Department is led by Anna-Mi Nel (Director) and operates from the head office at 49 First Avenue, Linden, Randburg (011 888 0246) with branches across Gauteng. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”), and the Family Law team is consistently named for plain, honest advice in domestic-violence and family-law matters. Call the head office to book a first consultation.