[Section 6 heading substituted by section 1 and 11 of the Domestic Violence Amendment Act, 2021 (Act No. 14 of 2021), as per Notice No. 788, GG45824, dated 28 January 2022]
| (1) |
If the respondent does not appear on a return date contemplated in section 5(3), and if the court is satisfied that— |
| (a) |
proper service has been effected on the respondent; and |
| (b) |
the application contains prima facie evidence that the respondent has committed or is committing an act of domestic violence, |
the court must issue a final protection order in the prescribed form.
| (1A) |
If the respondent does not appear on a return date contemplated in section 5(4), and if the court is satisfied that proper service has been effected on the respondent, the court must proceed to hear the matter and if the court after considering— |
| (a) |
any evidence previously received in terms of section 5(1); and |
| (b) |
such further affidavits or oral evidence as it may direct, that was adduced during the hearing, which must form part of the record of the proceedings, |
finds, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence, the court must issue a final protection order in the prescribed form.
| (2) |
If the respondent appears on the return date contemplated in section 5(3) or (4), in order to oppose the issuing of a protection order, the court must proceed to hear the matter and— |
| (a) |
consider any evidence previously received in terms of section 5(1); |
| (b) |
consider such further affidavits or oral evidence as it may direct, which must form part of the record of the proceedings; and |
| (c) |
if there is a dispute of fact, the court— |
| (i) |
may on application of the complainant or the respondent adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate in order to afford the party concerned the opportunity to adduce further evidence; and |
| (ii) |
must extend the interim protection order. |
(2A)
| (a) |
If the respondent appears but the complainant does not appear, or where both the respondent and the complainant do not appear, on the return date referred to in section 5(3), the court must extend the interim protection order and the return date, and the clerk of the court must notify— |
| (ii) |
the complainant and the respondent, where both did not appear, in the prescribed form and manner of the extended date. |
| (b) |
The court may discharge the interim protection order if the complainant does not appear on the extended date. |
(2B)
| (a) |
If the respondent appears but the complainant does not appear, or where both the respondent and the complainant do not appear, on the return date referred to in section 5(4), the court may, after due consideration of any evidence previously received in terms of section 5(1)— |
| (i) |
set a new return date for the hearing of oral evidence; or |
| (ii) |
discharge the matter. |
| (b) |
The clerk of the court must, in the prescribed form and manner, notify the parties of the extended date in terms of paragraph (a)(i). |
(3)
| (a) |
Sections 51A and 51C of the Magistrates’ Courts Act, 1944, apply to a hearing contemplated in subsection (2). |
| (b) |
In instances where paragraph (a) does not apply, the court may, of its own accord or at the request of the complainant or a witness who is in a domestic relationship with the respondent, and if it is in the interests of justice to do so, order that in the examination of the complainant or a witness, a respondent who is not represented by a legal representative— |
| (a) |
is not entitled to cross-examine directly the complainant or such a witness; and |
| (b) |
must put any question to the complainant or such a witness by stating the question to the court, and the court is to repeat the question accurately to the complainant or witness. |
| (4) |
The court must, after a hearing as contemplated in subsection (2), issue a final protection order in the prescribed form if it finds, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence. |
| (5) |
On the issuing of a final protection order the court must direct that— |
| (a) |
the original of such order must be served on the respondent within 48 hours or as soon as reasonably possible; and |
| (b) |
a certified copy of such order, and the original warrant of arrest contemplated in section 8(1)(a), must be served on the complainant, |
in the prescribed manner by the clerk of the court, sheriff or peace officer identified by the court.
(6)
| (a) |
The clerk of the court must immediately, in the prescribed manner, forward certified copies of any protection order and of the warrant of arrest contemplated in section 8(1)(a) to the police station of the complainant’s choice. |
| (b) |
The clerk of the court must capture— |
| (i) |
the final protection order; |
| (ii) |
the warrant of arrest contemplated in section 8(1)(a); and |
| (iii) |
the return of service of— |
| (aa) |
the original final protection order on the respondent; and |
| (bb) |
a copy of the final protection order and warrant of arrest on the complainant, |
on the integrated electronic repository.
| (7) |
Subject to the provisions of sections 5C(3)(c) and 7(7)(b), a final protection order issued in terms of this section— |
| (a) |
is of force and effect from the time that the existence and content of the order have been served on the respondent; and |
| (b) |
remains in force until it is set aside, and the execution of such order is not automatically suspended upon the noting of an appeal. |
[Section 6 substituted by section 11 of the Domestic Violence Amendment Act, 2021 (Act No. 14 of 2021), as per Notice No. 788, GG45824, dated 28 January 2022 - effective 14 April 2023 as the date on which the said Act, with the exception of section 6A, comes into operation, as per Proclamation No. 117, GG48419, dated 14 April 2023]
Statistics Act, 1999
