Question posted in the Criminal Law category relating to Western Cape
Question value: R 300.00
Applying for a protection order:
My ex was abusive. During the relationship, there was both physical and sexual violence. My ex is now threatening me with revenge porn. At this stage, I want a protection order to prevent him from contacting me or coming near me or my family (whom he threatened) and to hand over or delete any digital media of me taken without my consent. Is this the correct way to go? I have the following questions regarding a protection order:
1. Do I have to go to court myself or can I get a lawyer to do it on my behalf?
2. Can I write an affidavit and have it signed at a police station, or does it need to be done at the magistrates court?
3. What is the complete set of forms I need to fill out? I would prefer to do so before visiting the courts.
4. I received threats over whatsapp and email, can i simply print these out? How will these be verified?
5. I am applying in cpt and the respondent is in jhb - the issue is not urgent due to lockdown. Should I still request an interim protection order? Generally, how long does it take for a court date to be set?
6. If I pay for sheriff services to service the respondent, how long will that take?
7. There were instances of domestic and sexual violence, however I never visited a doctor or hospital. It will be my word against his, will that be an issue? What sort of evidence can I collect?
Answer to the Question
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Wow, I'm sorry to hear about your past relationship. To answer your questions -
1. This sounds like there is a protection order that you need, but also that you want an interdict against him to hand over / destroy the digital media. I would highly suggest getting a lawyer to assist you because it is 2 separate applications.
2. Your lawyer would assist in drafting your affidavit. You could then get it signed at the SAPS station. Not at the magistrates court.
3. If you were just doing the domestic violence protection order, I would be able to send you a link to a website where you can download the forms. But, because you are doing 2 applications in 1, your lawyer should assist you in completing the forms.
4. Yes, you can print them out. You would then attach them to your affidavit as Annexure 1 and 2, etc.
5. You should definitely apply for an interim protection order, simply because this is how the process works. First you get the interim order, then it is served on him, then you both go back to court to have the order made final. The court date really depends on the court. Every court is different and depends on the magistrates availability. With covid-19 there might be delays, but the court WILL deal with your case as urgent because protection orders are urgent. The chief justice has said this much 2 / 3 weeks ago.
6. It depends on the sheriff. If you courier the documents to the sheriff, and pay the sheriff's urgent fee, it might take 3 days. Otherwise if you post it and then let the sheriff take his time, it could take 4 weeks.
7. It will be your word against his unfortunately. This is a small problem, but maybe you told family members / friends about what was happening and they can do an affidavit as well? In respect of physical evidence, not much anymore. But any emails, Whatsapp, friends, etc who can do affidavits will help your case.
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Information provided by client
So with regard to next steps. I would like to complete as much as possible by myself first - I would love to get a lawyer, but I also need to do this asap.
So for next steps, is this correct?
1. I need to get a affidavit written and signed at a police station detailing the abuse and threats. Where can I get the affidavit form/template?
2. I have forms for the protection order (form 2 J59 APPLICATION FOR PROTECTION ORDER and form 3 INTERIM PROTECTION ORDER).
- I will then attach the affidavit here?
- Can these forms be signed at the police station as well? (it says Justice of Peace/Commissioner of Oaths)
Part C of Form 2 is to completed by clerk of court?
3. How do I apply for an interdict, is it the same as a protection order? Is there another form?
4. Where can I find a lawyer to help me with this?
Information provided by client
Answer to the Question
The affidavit details who the parties are, and sets out all of the FACTS which apply in your specific circumstances which you are relying on in order to get a protection order. So, this is unique to you. There is really no template that I can give you.
The application and the affidavit can be signed at a police station before any commissioned SAPS officer. Yes, the back is to be completed by the clerk.
The interdict and the interim protection order is the same thing.
I can't refer you to a specific lawyer, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further!