A protection order is a court order aimed at preventing the reoccurrence of domestic violence or harassment by stating what conduct the respondent must refrain from doing. It can be applied for under the Domestic Violence Act or the Protection from Harassment Act.
Step-by-Step Preparation
Consult with the Respondent:
Gather Information: Understand the respondent’s version of events. Collect all relevant details, including any evidence that may support their case.
Review the Protection Order: Carefully review the interim protection order and the accompanying affidavits to understand the allegations made by the complainant.
Draft a Replying Affidavit:
Respond to Allegations: Prepare a detailed replying affidavit that addresses each allegation made by the complainant. The affidavit should provide the respondent’s version of events and any evidence that supports their case.
Attach Supporting Documents: Include any relevant documents, such as witness statements, photographs, or other evidence that can refute the complainant’s claims.
File the Replying Affidavit:
Submit to the Court: File the replying affidavit with the clerk of the court. Ensure that it is submitted within the prescribed time frame.
Serve on the Complainant: Serve a copy of the replying affidavit on the complainant to ensure they are aware of the respondent’s defense.
Prepare for the Court Hearing:
Gather Evidence: Collect all necessary evidence and prepare any witnesses who may testify on behalf of the respondent.
Legal Arguments: Prepare legal arguments that support the respondent’s case. This may include referencing relevant case law and legal principles.
Attend the Court Hearing:
Present the Case: During the hearing, present the respondent’s case, including the replying affidavit, supporting documents, and witness testimonies.
Cross-Examine the Complainant: Be prepared to cross-examine the complainant and any witnesses they may call. This can help to challenge the credibility of their evidence.
Keep in mind that the Court may act as intermediary and not let you cross-examine the Complainant directly.
You may also call witnesses in support of your case.
Address the Court’s Concerns:
Danger: Argue that the respondent is not a danger to the complainant. Provide evidence of the respondent’s good character and any mitigating factors.
Interests of Justice: Emphasize that it is in the interests of justice to dismiss the protection order if the allegations are unfounded.
These are not “all-or-nothing” cases. If unsuccessful in dismissing it completely, you may be able to reduce the impact of onerous clauses. For example the Complainant originally asked for eviction of the Respondent from the house, but it may be in the interest of justice to let them live in separate parts of the house if possible.
Also see: The Domestic Violence Act: dva1998178.pdf and Protection from Harassment Act 17 of 2011
