What is a Non-Molestation Order?
This is a legal order containing either or both of the following provisions—
(a) provision prohibiting a person (“the respondent”) from molesting another person who is associated with the respondent;
(b) provision prohibiting the respondent from molesting a relevant child.
It therefore forbids an abuser from:
- Molesting a person or any relevant child;
- It can forbid an abuser from damaging, attempting to damage or threatening to damage or dispose of possessions;
- Harassing, intimidating, or pestering;
- Using or threatening any unlawful violence;
- Communication whether by letter, text message or other means;
- Enter, attempt to enter any premises which they believe you are residing in;
- Instructing or encouraging any other person to do anything which they are forbidden to do in the order.
As an applicant in non-molestation proceedings, you have the option to make an application either without notice to the Respondent or with notice to the Respondent.
A “without notice” or “ex-parte” application is filed without the other party being notified of the application or being present at court for the first hearing. This type of application is suitable in cases where giving the respondent notice would likely result in a risk of further harm or you being pressured not to pursue the application.
Alternatively, an “on notice” application means that the Respondent is aware that you have filed and will be notified by the court about a hearing date.
Non-molestation hearings take place “in chambers” which mean in private at the Court. The length of the hearing varies, depending on the complexity of the case and whether the Respondent disputes the allegations.
Return Date Hearing
A return date hearing is the hearing listed after a without notice application that has been granted by the court. It is the first opportunity for the Respondent to give their side of the case before the court, providing the Judge a better understanding of the case. The Respondent will be required to state whether they intend to accept of defend the application.
After the hearing the Court can:
- Dismiss the application (this rarely happens); or
- make a non-molestation and / or occupation order; or allow it to continue if already made without notice;
- accept an Undertaking from the Respondent in terms that have been agreed between both the Applicant and the Respondent;
- List the matter for a contested hearing/ trial to hear evidence before a decision in made.
What are Undertakings?
An Undertaking is an option that allows the parties to settle their dispute without a full hearing. It is a promise made to the Court to do or not to do, certain things. It is not an admission of guilt or finding of fact.
An Undertaking cannot, therefore, be used in subsequent criminal proceedings as evidence of a criminal charge or as proof that any violence has occurred.
The Court cannot attach a Power of Arrest to an Undertaking, but breaking an Undertaking is still contempt of Court and is enforceable as any other order of the court. This means you can be taken back to Court if you break the promises, and the Judge will decide on the alleged breaches.
What if there is a breach?
Breach of a non-molestation is a criminal offence, as such it carries the power of arrest. If a respondent breaches the order after the Order is served the Applicant can call the police and show them a copy of the order which may lead to their arrest.
Q: How long is a Non-Molestation order in place for?
A: A non-molestation order can be in place between 6-12 months, but each case is dealt with on it own facts.
Q: Can I extend a Non-Molestation order?
A: You can extend a non-molestation order provided that in the period of the current order being enforce there has been fresh evidence of molestation that would warrant the need for a further order.
Q: How long could a person go to prison for breaching a Non-Molestation order?
A: This depends on the breach but they will face a criminal trial which could result in a prison sentence of up to five years.