Protection Order vs Restraining Order
"Restraining order" is an informal term borrowed from foreign legal systems. South Africa does not use that term formally. What people mean is either a protection order (under the Protection from Harassment Act or Domestic Violence Act) or an interdict (High Court or Magistrates' Court civil order). Here's how they differ.
Protection Order
A court order under the Protection from Harassment Act 17 of 2011 or the Domestic Violence Act 116 of 1998, prohibiting the respondent from specified conduct.
When it applies: Use a protection order for harassment, stalking, cyberbullying, or domestic violence. Available at the Magistrates' Court, free of charge.
Law: Protection from Harassment Act 17 of 2011; Domestic Violence Act 116 of 1998.
Example: A woman applies for a protection order against an ex-partner who keeps coming to her workplace and sending threatening messages.
Interdict (Restraining Order)
A court order (interim or final) prohibiting a person or body from doing a specific act, available in the High Court or Magistrates' Court for any civil matter.
When it applies: Use an interdict for commercial disputes, property encroachments, breach of contract, nuisance, defamation, or any situation outside the specific harassment/domestic violence framework.
Law: Supreme Court Act (High Court); Magistrates' Courts Act; common law (Setlogelo test for interim interdicts).
Example: A company obtains an interdict preventing a former employee from breaching a restraint of trade clause.
Key Differences at a Glance
| Aspect | Protection Order | Interdict (Restraining Order) |
|---|
| Legislation |
Harassment Act / Domestic Violence Act (specific) |
General civil law (High Court or Magistrates' Court) |
| Cost |
Free — no legal fees required at Magistrates' Court |
Legal fees often significant, especially in High Court |
| Speed |
Interim order often granted on day of application |
Urgent interdict can be granted ex parte but requires more preparation |
| Criminal sanction for breach |
Yes — breach is an automatic criminal offence (up to 5 years) |
Breach is contempt of court — must be brought back to court |
| Scope of conduct prohibited |
Specific to harassment, contact, communication |
Any conduct specified in the court order |
| Who can apply |
Any person — no legal representation needed |
Any person — legal representation strongly advisable |
Frequently Asked Questions
Is a "restraining order" from another country valid in South Africa?
Not automatically. A foreign protection order must be registered with a South African court to be enforceable here. Contact a South African attorney for the registration process.
Can I get a protection order against a company in South Africa?
Protection orders under the Harassment Act apply to persons (individuals). For harassment by a company or its employees, an interdict in the High Court or Magistrates' Court is the appropriate remedy.
Does getting a protection order affect the other person's criminal record?
A protection order itself is not a criminal conviction and does not create a criminal record. However, breach of the order is a criminal offence — conviction for breach would create a criminal record.