Protection order hearings – domestic violence and harassment

What can you expect?

If you have applied for a protection order and have been asked to attend a hearing, you may be feeling anxious. It may be your first experience of a court hearing, and it may seem daunting. If you are threatened by your partner, you are already feeling vulnerable and unsafe. Going to court can be frightening. But the judicial system is there to protect you. Knowing what to expect may ease your nervousness, so we outline exactly what goes on in a protection order hearing in a South African court.

Protection order hearings are civil proceedings designed to provide swift, effective relief from abuse and harassment. These hearings take a victim-sensitive approach. We explain how to prepare for a hearing, what to expect, how to present your evidence, and how courts evaluate that evidence.

Domestic Violence Act 116 of 1998 as amended (DVA): 

The DVA provides protection for anyone in a domestic relationship who is subjected to “domestic violence”, which includes physical, emotional, verbal, psychological and economic abuse, intimidation, harassment, stalking, damage to property, etc. 

You can obtain a protection order prohibiting the abuser from coming near you or contacting you. The DVA allows for interim orders to be granted without the need for you to be present if urgent, followed by a return date for a final order hearing. To grant an interim order, the court must be satisfied there is prima facie evidence of domestic violence and that immediate protection is necessary. 

Protection from Harassment ACT 17 of 2011 as amended (PHA): 

The PHA provides similar relief for victims of harassment, regardless of any domestic relationship. “Harassment” is defined as unreasonable conduct, such as repeated unwanted communication, stalking or threats, that causes harm or inspires a reasonable fear of harm. 

The PHA’s procedure closely mirrors the DVA in that you can apply for an interim protection order if there’s prima facie evidence of harassment and urgent harm. Whether under the DVA or PHA, an interim order offers immediate but temporary protection, and the other party is given a return date to appear in court and argue why the order should not be made final. Applications are made by sworn affidavit submitted at the Magistrate’s Court. 

Application and interim order: ex parte process

The initial application is usually decided ex parte (only the applicant’s side is heard) to prevent delay in urgent cases. You file a form and affidavit detailing the incidents of violence or harassment, attaching any evidence (such as photos of injuries, etc.). At this stage, the court “must as soon as reasonably possible consider” the application and may consider additional evidence. In practice, this means a magistrate may ask you clarifying questions or request supporting affidavits from witnesses.

Because the respondent (your abuser) isn’t present to give their version at an ex parte hearing, the law imposes a duty of utmost good faith on you. You must fully disclose all material facts, even those that might be unfavourable. Failure to reveal important information can lead to the interim order being overturned at the return hearing. This rule exists because ex parte proceedings depart from the usual principle of both sides being heard, so the onus is on you to be honest with the court.

If the magistrate agrees there’s a risk of imminent harm, an interim protection order is issued immediately. This order is served on the respondent, together with a notice of the return date for a full hearing. If the respondent breaches the order, they can be arrested. 

The return hearing procedure 

On the return date, the court will decide whether to make the protection order final. Both parties have the right to be heard at this hearing. These matters are often heard in a closed court to protect the privacy of the parties. You are each entitled to legal representation, but you may represent yourself. 

If the respondent does not appear on the return date, the court may proceed in their absence. Under the DVA, if the case started with an interim order and the respondent fails to show up, the court must issue a final protection order if it is satisfied that the interim evidence was sufficient and unchallenged. Similarly, under the PHA, non-appearance by the respondent compels the court to make the order final, provided the complainant’s affidavit shows a prima facie case of harassment. 

If the respondent opposes the granting of a final order, the court will consider the evidence already on record and then consider “such further affidavits or oral evidence as it may direct”. Each party will have the opportunity to tell their side of the story. If oral evidence is given, the normal rights of cross-examination apply – with a critical exception designed to protect victims from intimidation. If the respondent is self-represented, the court may forbid them from directly cross-examining you. The unrepresented respondent must put their questions through the magistrate, who then repeats the questions to you. 

Rights of the parties

Both you and respondent have the right to a fair hearing. The respondent’s right to fair trial includes the opportunity to see and challenge the evidence against them. The courts strive to balance flexibility with fairness: the court can receive additional evidence to get the full picture, but it must also give the other party an opportunity to rebut or comment on it.

Proceedings under these Acts are civil, not criminal. The respondent is not “on trial” for a crime during the protection order hearing, so criminal procedural rights do not apply. The standard is the balance of probabilities. However, breach of a protection order is a criminal offence, so a respondent who violates a final order can be arrested and prosecuted separately. 

Evidence at hearings

Evidence at the hearing can be presented through affidavits, documents and/or oral testimony. Common evidence includes sworn statements by the parties and witnesses; text messages, emails, social media posts showing harassment; phone records; photographs of injuries or property damage; medical reports of injuries; and sometimes expert testimony, such as a psychologist’s report. 

A lot of the evidence will be in written form. However, you should be prepared to give oral evidence if the magistrate considers it necessary to resolve factual disputes. If the case hinges on a disputed fact, first-hand testimony is more persuasive. For example, rather than saying “my neighbour told me she saw the respondent lurking outside my house,” have the neighbour file a supporting affidavit or come to court to testify. 

Standard of proof 

At the final hearing, the court will assess all the evidence and decide whether it is more likely than not that the alleged domestic violence or harassment occurred. This is a lower threshold than “beyond reasonable doubt.” It allows the court to issue protective orders even in scenarios where there are no eyewitnesses or where it’s your word against your abuser’s. 

When assessing conflicting evidence, magistrates often rely on credibility and consistency. If both parties present diametrically opposed stories in affidavit form and no additional evidence, the magistrate may call for oral evidence to observe demeanour and ask questions, or they may apply a rule requiring any genuine factual disputes to be resolved in favour of the respondent’s version. 

In practical terms, if the respondent provides a plausible counter-story and you cannot rebut it with additional evidence or testimony, the court might not grant a final order. However, magistrates are also guided by the purpose of these Acts – to protect victims while ensuring fairness – and will not let overly technical objections defeat a worthy case. 

Admissibility considerations 

Generally, relevant evidence is admissible (allowed to be used in court). Evidence of past incidents of abuse, even if they happened months or years ago, can demonstrate a pattern and justify your ongoing fear. If new incidents occur after the interim order, you should inform the court on the return date, as it can strongly support the need for a final order. The respondent can bring up any defences or mitigating factors. The court will consider these arguments but will ultimately focus on whether you currently need protection from harm. You do not need to have suffered physical harm. Psychological harm or reasonable fear is enough. Thus, evidence of emotional distress can be relevant. 

Preparing and presenting evidence

To maximise your chances of obtaining a final protection order, prepare your evidence thoroughly. Include detailed descriptions of the abuse or harassment: dates, places, what was said or done, and how it affected you. Use clear, factual language. Attach any tangible evidence, such as print-outs or screenshots of messages (with dates visible), photographs of injuries or damage, police case numbers if you have them, etc. If others were aware of the situation, ask them to write affidavits. 

Organise your evidence for the hearing. Bring originals of documents if possible. Prepare a chronology of events, so you can clearly explain the sequence of incidents. Anticipate what the respondent might say and be ready to address it. Be candid about any weaknesses in your case – for example, it’s better to acknowledge that you stayed in contact with the person for a while after the abuse rather than have your abuser use that to undermine your credibility. 

Domestic violence and harassment protection order hearings, while civil in nature, carry high stakes for both parties: your safety and your abusers freedom of action are on the line. South African law provides a framework that aims to be accessible, swift and fair, allowing courts to consider a broad range of evidence and conduct hearings with. The DVA and PHA allow for allegations to be proven on a balance of probabilities, but the court may act on incomplete information initially to avert imminent harm, then test the evidence more fully at the return hearing.

In summary, if you are involved in a DVA or PHA hearing, you should:

• Know the procedure: an interim order (if granted) is just the first step; a final hearing will determine longer-term relief.
• Understand your rights: the right to be heard, to present evidence, to question the other side (with protective measures in place), and to a fair process.
• Prepare your evidence: bring all relevant proof and be ready to substantiate your story under oath.
• Be truthful and complete: credibility is key, and full disclosure is required, especially for applicants seeking ex parte relief.
• Focus on what’s relevant: keep the evidence and testimony to the incidents of abuse/harassment and their impact, as that is what the court must ultimately base its decision on.

Cape Town family lawyer can help

SD Law is a firm of family attorneys in Cape Town, Johannesburg and Durban with deep experience of helping women escape physical and emotional abuse by partners. We can serve a protection order on an abusive partner and help you initiate divorce proceedings, if appropriate. We will connect you to relevant support services and make sure you and your children are safe. At Cape Town Divorce Attorneys, we understand how deeply distressing domestic violence and harassment can be. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Domestic Violence Amendment Bill
• Coercive control – spotting the signs
• I am frightened of my partner. How do I secure a protection order?

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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