There are certain limitations to what protection, protection orders can offer. Some abuse the process to cause frustration in a particular area of the law which may require different recourse for a truly aggrieved party. As a point of departure there are two pieces of legislation that governs protections orders: The Protection against Harassment Act no. 17 of 2011 (“PHA”) and the Domestic Violence Act no. 16 of 1998. (“DVA”) Both pieces of legislation seek to achieve similar objectives in that they provide recourse to a person who may have been or are being subjected to the unsavoury conduct of a third party. Once a protection order is granted, it has the effect of a prohibitory interdict which prevents the third party from acting in an unlawful manner.
The difference between the two pieces of legislation
The Domestic Violence Act requires there to be a domestic relationship between the complainant and the respondent. A domestic relationship is defined as being complainant having a relationship with the respondent in any of the following ways but not limited to a marital relationship irrespective of the source thereof or, live together whether married or single or, parents with parental rights and responsibilities or, family members or an intimate relationship. The foregoing is the prerequisite before the complainant will have recourse in terms of the DVA. If no such domestic relationship exist then the complainant may bring the application in the prescribed manner in terms of the PHA which does not require there to be a domestic relationship. The protection afforded by both pieces of legislation is materially similar.
Limitations on the respective legislation
Both pieces of legislation seek the protections of personal rights, particularly protection against psychological or physical harassment. Harassment is further defined my both legislation in detail.
There are however, certain limitations to the respective legislation. It is often seen that complainant brings an application for protection order in which they seek to prevent the respondent from exercising its rights in terms of the law. An example would be where a respondent is exercising its rights in terms of a lease agreement or any other form of contract. A quest for compelling a respondent to perform in terms of a contract, for example, to restore the goods in possession of the complainant falls squarely within the ambit of contractual law or property law. Our High Courts are tasked with the enforcement of contractual agreements, and a matter of this nature is most certainly not matter for domestic violence or harassment court to adjudicate.
Although section 7(a) of the DVA indicates that the court may not refuse to grant a protection order where it is competent to impose it as such on the basis that the complainant can find recourse in another area of law and this includes recourse in terms of the Maintenance Act no. 99 of 1989. In this instance, the court must make an order that such provision is in force for a limited period to afford the interested party to find recourse in the particular area of law. Ultimately, the court will have the prerogative to grant an order which is just and equitable.
As indicated in a previous article, a complainant does not need to endure the unsavoury conduct of a third party where their personal rights such as the right to human dignity and bodily integrity are being violated. Both Acts cover a wide variety of misconduct and the protection afforded thereunder is readily available to the complainants.
Written by Hamlet Dew Heneke, Schoemanlaw Inc.