Contextualising the issuing of protection orders in Namibia
OPINION
A protection order is a form of remedy a victim of domestic violence has against an alleged perpetrator(s) of domestic violence. Legally, the alleged perpetrator should be in a domestic relationship with the victim/complainant.
Protection orders are regulated by the Combating of Violence Act 4 of 2004, the objective of which is to provide for the issuing of protection orders in domestic violence matters and domestic violence offences, amongst others.
There are sometimes challenges posed by the protection order issuing process. Experience shows that this type of remedy is misunderstood and wrongly applied by relevant stakeholders who are supposed to execute it against the perpetrator of domestic violence without fear, favour or prejudice.
First of all, I must say that this legislation is correctly passed and seems reasonable.
The grave concern emanates from the manner it is being applied and implemented by relevant stakeholders like the police, prosecutors, complainants, and, to some extent, the magistrates.
This is so because in many incidents involving family feuds, some family members are ejected from the primary homes based on malice and/or hatred.
The Domestic Violence Act is clear, as it provides that an application for a protection order may be brought to court having jurisdiction of the area where the victim/complainant of domestic violence resides or on his/her behalf, which application should allege that domestic violence was committed against the victim in the form of physical abuse, physical assault, sexual abuse, and/or economic abuse, to mention but a few.
Protection orders are sometimes abused by unscrupulous complainants with ill motives who, in some cases, are abetted by officials’ – whether knowingly or perhaps unknowingly – about the object of the legislation.
The Domestic Violence Act provides that any person who has an interest in the wellbeing of the victim/complainant may bring an application on his/her behalf.
Regrettably, some complainants bring applications to court because of hatred in a vexatious and frivolous manner as a means to punish others, even sometimes when those alleged perpetrators are not in a domestic relationship with the victim/complainant.
No access
The Namibian newspaper reported in March 2025 about a mother of seven children who was kicked out of her house by the husband after he applied for a protection order, from which one can infer that perhaps such application was based on flimsy evidence, and as a result, the poor woman was left stranded in the rain with her minor children.
Such trends lead to family homes being destroyed and torn apart because relevant stakeholders appear not to pay attention and scrutinise such applications for protection orders critically.
This debate was triggered by the fact that an interim protection order is issued to any applicant without verifying the veracity of such a complaint being lodged by an applicant with insufficient evidence.
The legislation directs that the court will only issue an interim protection order if it is satisfied that there is enough evidence before it to warrant the issuance of an interim protection order.
The court is duty bound to summon any person to appear before it to corroborate evidence adduced and may require oral evidence before it issues an interim protection order. Sadly, this does not happen before an interim protection order is issued.
Right of response
The drawback is when the court issues an interim protection with a return date for the respondent to oppose the confirmation of the protection order within 30 days.
In most cases, the victim/complainant fails to appear within that time because he/she was perhaps influenced by others to apply a protection order against the alleged perpetrator or was not in a good state of mind, and in the meantime, the alleged perpetrator is barred from the primary home without a right of reply.
Cases are often postponed on the return date up to four or five times, and the alleged perpetrator suffers prejudice by false complaints because he/she is restrained from coming near or at the primary home because of false complaints that are not properly verified or contested before an interim protection order is issued.
Therefore, relevant stakeholders are implored to review and improve the process of issuing interim protection order to ensure that it is done in the best interests of both the complainant and the alleged perpetrator after both are afforded the opportunity to state their cases.
*Lucas Tshuuya is a legal practitioner from Onaanda in the Uukwambi district. [email protected]
Protection orders are regulated by the Combating of Violence Act 4 of 2004, the objective of which is to provide for the issuing of protection orders in domestic violence matters and domestic violence offences, amongst others.
There are sometimes challenges posed by the protection order issuing process. Experience shows that this type of remedy is misunderstood and wrongly applied by relevant stakeholders who are supposed to execute it against the perpetrator of domestic violence without fear, favour or prejudice.
First of all, I must say that this legislation is correctly passed and seems reasonable.
The grave concern emanates from the manner it is being applied and implemented by relevant stakeholders like the police, prosecutors, complainants, and, to some extent, the magistrates.
This is so because in many incidents involving family feuds, some family members are ejected from the primary homes based on malice and/or hatred.
The Domestic Violence Act is clear, as it provides that an application for a protection order may be brought to court having jurisdiction of the area where the victim/complainant of domestic violence resides or on his/her behalf, which application should allege that domestic violence was committed against the victim in the form of physical abuse, physical assault, sexual abuse, and/or economic abuse, to mention but a few.
Protection orders are sometimes abused by unscrupulous complainants with ill motives who, in some cases, are abetted by officials’ – whether knowingly or perhaps unknowingly – about the object of the legislation.
The Domestic Violence Act provides that any person who has an interest in the wellbeing of the victim/complainant may bring an application on his/her behalf.
Regrettably, some complainants bring applications to court because of hatred in a vexatious and frivolous manner as a means to punish others, even sometimes when those alleged perpetrators are not in a domestic relationship with the victim/complainant.
No access
The Namibian newspaper reported in March 2025 about a mother of seven children who was kicked out of her house by the husband after he applied for a protection order, from which one can infer that perhaps such application was based on flimsy evidence, and as a result, the poor woman was left stranded in the rain with her minor children.
Such trends lead to family homes being destroyed and torn apart because relevant stakeholders appear not to pay attention and scrutinise such applications for protection orders critically.
This debate was triggered by the fact that an interim protection order is issued to any applicant without verifying the veracity of such a complaint being lodged by an applicant with insufficient evidence.
The legislation directs that the court will only issue an interim protection order if it is satisfied that there is enough evidence before it to warrant the issuance of an interim protection order.
The court is duty bound to summon any person to appear before it to corroborate evidence adduced and may require oral evidence before it issues an interim protection order. Sadly, this does not happen before an interim protection order is issued.
Right of response
The drawback is when the court issues an interim protection with a return date for the respondent to oppose the confirmation of the protection order within 30 days.
In most cases, the victim/complainant fails to appear within that time because he/she was perhaps influenced by others to apply a protection order against the alleged perpetrator or was not in a good state of mind, and in the meantime, the alleged perpetrator is barred from the primary home without a right of reply.
Cases are often postponed on the return date up to four or five times, and the alleged perpetrator suffers prejudice by false complaints because he/she is restrained from coming near or at the primary home because of false complaints that are not properly verified or contested before an interim protection order is issued.
Therefore, relevant stakeholders are implored to review and improve the process of issuing interim protection order to ensure that it is done in the best interests of both the complainant and the alleged perpetrator after both are afforded the opportunity to state their cases.
*Lucas Tshuuya is a legal practitioner from Onaanda in the Uukwambi district. [email protected]
Comments
Namibian Sun
No comments have been left on this article