In South Africa there is no separate court order called a “restraining order”; the terms are used interchangeably in everyday speech, and the formal legal remedy is the protection order under the Domestic Violence Act 116 of 1998. Where the parties are not in a domestic relationship, the equivalent remedy is a protection order under the Harassment Act 130 of 2011. Both orders restrain the respondent from committing further acts of abuse or harassment, and a breach is a criminal offence.
The practical difference is therefore not between “protection” and “restraint” but between the two statutes. Which Act applies depends on your relationship to the other person and the type of conduct involved. This guide explains both, compares them, and sets out how to apply.
Why “Restraining Order” Is Not a South African Legal Term
Searches for “restraining order” usually come from American legal television and websites. In the United States, restraining orders are issued in a wide range of civil disputes. South African courts do not issue orders under that name.
What South African law offers instead is purpose-built protection. The Domestic Violence Act covers abuse within domestic relationships, and the Harassment Act covers stalking and harassment by anyone else, including strangers, neighbours and colleagues. If you ask a court clerk for a “restraining order”, you will be routed to one of these applications.
The Protection Order Under the Domestic Violence Act
The Domestic Violence Act 116 of 1998 exists to give victims of domestic violence quick, accessible relief. “Domestic violence” is defined broadly: it includes physical, sexual, emotional, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent, and any other controlling or abusive conduct.
To use the Act you must be in a domestic relationship with the respondent: current or former spouses or partners, people who share or shared a residence, family members, parents of a child, or people in an actual or perceived romantic relationship. Once the order is granted, a breach is a criminal offence, and the police must arrest a respondent who violates it, with or without a warrant, using the warrant of arrest the court issues with the final order.
The Protection Order Under the Harassment Act
The Harassment Act 130 of 2011 protects people who are stalked or harassed outside a domestic relationship. “Harassment” includes directly or indirectly engaging in conduct that the respondent knows causes harm or inspires a reasonable belief that harm may be caused, following or watching the complainant, and unwanted electronic communication, including by SMS, email and social media.
The procedure mirrors the domestic violence process: an ex parte application, an interim order, and a return date when the respondent may show cause. A police official must hand a certified copy of the order to the respondent, and breach is a criminal offence.
Side-by-Side Comparison
| Feature | Domestic Violence Act 116 of 1998 | Harassment Act 130 of 2011 |
|---|---|---|
| Relationship required | Domestic relationship, including former partners | Any person; no relationship needed |
| Conduct covered | Physical, sexual, emotional, verbal, psychological and economic abuse, stalking, damage to property | Stalking, watching, unwanted communication, conduct causing harm or fear of harm |
| Where you apply | Magistrate’s Court for the area where you live, work or where the abuse happened | Same, at the court for the area where you or the respondent resides, works or the harassment occurred |
| Cost | Free | Free |
| Interim relief | Yes, ex parte, on the day you apply | Yes, ex parte, on the day you apply |
| Breach | Criminal offence; warrant of arrest issued with final order | Criminal offence |
How to Apply, Step by Step
- Go to the clerk of the Magistrate’s Court nearest to where you live, work or where the incident occurred, with your ID and any evidence such as messages, photographs, medical reports or affidavits from witnesses.
- Complete the application form and an affidavit describing the abuse or harassment and your relationship to the respondent.
- The clerk submits the application to a magistrate the same day. If the magistrate is satisfied, an interim protection order is granted and a return date is set.
- The sheriff or a police official serves the interim order on the respondent before the return date.
- On the return date both parties may give evidence. The court then either discharges the interim order or makes it a final protection order, on notice to the respondent.
- Once final, the court issues a warrant of arrest for the respondent, which is suspended unless the respondent breaches the order.
What a Protection Order Can Include
Beyond the core restraint, the court may order the respondent not to enter the shared home, a specific workplace or a child’s school, to pay rent or maintenance as emergency relief, to seize firearms or other dangerous weapons, and to accompany a police official to collect personal property. Conditions are tailored to the facts, so set out in your affidavit precisely what you need the order to prohibit.
Common Mistakes to Avoid
- Waiting for physical violence. The Act covers emotional, verbal and economic abuse, so you do not have to be assaulted before you qualify for relief.
- Vague affidavits. “He abuses me” carries less weight than dated incidents with specifics, evidence and witnesses.
- Applying under the wrong Act. If there is no domestic relationship, the Domestic Violence Act does not apply and the application will fail; the Harassment Act is the correct route.
- Not keeping proof of service and the signed order. Keep certified copies with you; the police act on the order you can produce.
- Arranging to meet the respondent alone to “sort it out” while an application is pending. Report every breach to the police instead.
Frequently Asked Questions
Is a restraining order the same as a protection order in South Africa?
Yes, in everyday speech the two names describe the same remedy. South African law has no order formally called a restraining order; the legal instrument is a protection order under the Domestic Violence Act 116 of 1998 or, where there is no domestic relationship, the Harassment Act 130 of 2011.
How long does it take to get a protection order in South Africa?
An interim protection order can be granted on the same day you apply, if the magistrate is satisfied there is prima facie evidence of abuse or harassment. The final order follows on the return date after the respondent has been served and given an opportunity to respond.
What happens if someone breaks a protection order?
Breach of a protection order is a criminal offence. The complainant reports the breach to the police, who may arrest the respondent using the suspended warrant of arrest the court issued with the final order, and the respondent is prosecuted in the criminal courts.
Can I get a protection order against someone I am not dating or related to?
Yes, but under the Harassment Act 130 of 2011 rather than the Domestic Violence Act. The Harassment Act covers stalking, watching and unwanted communication by any person, including strangers, neighbours and colleagues, where no domestic relationship exists.
Disclaimer. This article is general information about South African protection order law, not legal advice for a specific matter. Confirm current forms and procedure with your nearest Magistrate’s Court, the South African Police Service, or a family law attorney before applying.