In South Africa, victims of abuse or harassment have legal recourse through protection orders. Two primary pieces of legislation provide this protection: the Protection from Harassment Act 17 of 2011 (Harassment Act) and the Domestic Violence Act 116 of 1998 (DVA).
While both aim to safeguard individuals, they apply to different relationships and forms of harm. Choosing the correct Act is critical to ensuring the right remedy and avoiding unnecessary delays or dismissals.
This guide explains the key differences, what you must prove, the application process, interim orders, affidavits and timelines.
1. When to Use Which Act
Domestic Violence Act
- There must be a domestic relationship (e.g., spouse, partner, ex-partner, parent, child, family member, cohabitant, or someone you share a child with).
- Types of conduct include physical, sexual, emotional, verbal, psychological or economic abuse; intimidation; damage to property; stalking; or entering a residence without consent.
- Ask yourself: “Is this abuse within a domestic relationship?”
Harassment Act
- No domestic relationship is required. This may involve a neighbour, colleague, stranger or former friend.
- The conduct must amount to harassment: a pattern of behaviour that causes fear, alarm or distress (such as repeated unwanted contact, threats, stalking or cyberbullying).
- Ask yourself: “Is this harassment by anyone, regardless of relationship?”
2. What Must You Prove
Domestic Violence Act
You must show:
- You are in a domestic relationship with the respondent.
- The respondent committed or is likely to commit an act of domestic violence as defined in Section 1 of the Act.
- You require protection from further abuse.
Example: Your ex-partner threatens to harm you or your child, or repeatedly shows up at your home uninvited.
Harassment Act
You must show:
- The respondent is engaging in harassment (direct or indirect conduct that causes harm or creates a reasonable belief of harm).
- The harassment is ongoing or likely to continue.
- You require protection to stop the harassment.
Example: A neighbour sends repeated threatening messages, or a stranger stalks you online and in person.
3. The Application Process (Step-by-Step)
Step 1: Go to the Magistrate’s Court
- Visit the Magistrate’s Court in your area during office hours (typically 08:00–16:00).
- Ask for the Clerk of the Court (Domestic Violence or Civil Section).
- You do not need a lawyer and the clerk will assist you free of charge, although legal assistance can help ensure the application is properly prepared.
Step 2: Complete the Required Form
You will complete:
- Form 2 for Domestic Violence Act applications; or
- Form 1 for Harassment Act applications.
This document serves as your affidavit — a sworn statement of facts.
You should describe:
- Who the respondent is.
- The relationship between you (if any).
- Specific incidents, including dates, times and what occurred.
- How the conduct affected you (fear, distress or harm).
- Why you require urgent protection.
Tip: Be factual, detailed and honest. Attach evidence such as WhatsApp screenshots, photographs or medical reports.
Step 3: The Court Considers Your Application
The magistrate reviews your affidavit privately (without the respondent present). Two possible outcomes may follow.
Result 1: Interim Protection Order Granted
If the magistrate is satisfied that:
- You are in danger; and
- Waiting would cause undue hardship,
The court may grant an interim protection order and issue a notice to show cause requiring the respondent to appear in court.
The interim order must be served on the respondent by the sheriff or police. Once served, it takes immediate effect and remains in place until the final hearing.
The interim order can prohibit the respondent from:
- committing further abuse or harassment;
- contacting you;
- coming near your home or workplace; or
- using other people to harass or intimidate you.
The notice to show cause instructs the respondent to appear in court on a specified return date to explain why the interim order should not be made final.
Result 2: Interim Protection Order Not Granted
If the magistrate determines that:
- You are not in immediate danger; or
- Waiting will not cause undue hardship,
The court may decline to grant an interim order but will still issue a notice to show cause requiring the respondent to appear in court.
4. Returning to Court
Usually between two and four weeks after the application, both parties must appear in court.
The respondent may file an opposing affidavit setting out their version of events, and you may file a replying affidavit if necessary.
The first appearance is often postponed to allow time for these affidavits to be exchanged and for both parties to prepare for the final hearing.
5. The Final Hearing
Once all affidavits have been exchanged and the matter is ready for trial, the magistrate will hear both parties in court.
This may occur anywhere from two months to two years after the initial application depending on court availability.
The magistrate may then:
- Grant a final protection order (often lasting between two and five years); or
- Dismiss the application.
If the respondent fails to appear in court, the interim protection order is usually made final by default.
Breach of a Protection Order
If an interim or final protection order is granted and the respondent breaches the order (for example by contacting you or approaching your home), you should report the breach to the police immediately.
Breach of a protection order is a criminal offence. The respondent may be arrested and can face a penalty of up to five years’ imprisonment.
Need Help With a Protection Order?
Choosing between the Domestic Violence Act and the Harassment Act depends on your relationship with the respondent and the nature of the harm involved.
Our experienced family law attorneys can assist you by:
- drafting strong affidavits;
- representing you on the return date; and
- enforcing breached protection orders.
Do not wait. If you are in danger, apply for an interim protection order as soon as possible.