| (1) | The court must as soon as is reasonably possible consider an application submitted to it in terms of section 4(1)(b) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings. |
| (1A) | Where circumstances permit, a court that considers an application referred to in subsection (1), may cause an investigation to be carried out— |
| (a) | by a Family Advocate contemplated in the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987), in whose area of jurisdiction that court is, with regard to the welfare of any child affected by the proceedings in question, whereupon the provisions of that Act apply with the changes required by the context; or |
| (b) | by a designated social worker as contemplated in section 47 of the Children’s Act, 2005 (Act No. 38 of 2005), if it appears to that court that a child involved in or affected by proceedings in question is in need of care and protection, whereupon the provisions of that Act apply with the changes required by the context. |
| (2) | If the court is satisfied that— |
| (a) | there is prima facie evidence that the— |
| (i) | respondent is committing, or has committed an act of domestic violence; |
| (ii) | complainant is suffering or may suffer harm as a result of such domestic violence; and |
| (b) | the issuing of a protection order is immediately necessary to protect the complainant against the harm contemplated in paragraph (a)(ii), the court must, notwithstanding the fact that the respondent has not been given notice of the proceedings contemplated in subsection (1), issue an interim protection order in the prescribed form against the respondent. |
(3)
| (a) | Upon the issuing of an interim protection order, the court must direct that— |
| (i) | certified copies of the application referred to in section 4(1)(b), and any supporting affidavit that accompanied the application; |
| (ii) | the record of any evidence noted in terms of subsection (1); and |
| (iii) | the original interim protection order issued in terms of subsection (2), |
be served on the respondent in the prescribed manner by the clerk of the court, sheriff or peace officer identified by the court.
| (b) | An interim protection order must call on the respondent to show cause on the return date specified in the order why the interim protection order should not be made final. |
| (c) | The clerk of the court must immediately, upon the issuing of an interim protection order— |
| (i) | in the prescribed form and manner notify the complainant thereof; and |
| (ii) | capture a copy of the interim protection order on the integrated electronic repository. |
(4)
| (a) | If the court does not issue an interim protection order in terms of subsection (2), the court must direct the clerk of the court, to cause certified copies of the application concerned and any supporting affidavits to be served on the respondent in the prescribed manner, together with a prescribed notice calling on the respondent to show cause on the return date specified in the notice why a protection order should not be issued. |
| (b) | The clerk of the court must in the prescribed form and manner, notify the complainant that the court has not issued an interim protection order and of the return date. |
| (c) | Upon service or upon receipt of a return of service of the documents referred to in paragraph (a), on the respondent, the clerk of the court must capture the return of service in the integrated electronic repository. |
(5)
| (a) | The return dates referred to in subsections (3)(b) and (4)(a) may not be less than 10 days after service has been effected upon the respondent: Provided that the return date referred to in subsection (3)(b) and (4)(a) may be anticipated by the respondent upon not less than 24 hours’ written notice to the complainant and the court. |
| (b) | The clerk of the court must capture the written notice in the integrated electronic repository. |
| (6) | An interim protection order is of force and effect from the time that the existence and content of the order have been served on the respondent. |
| (7) | Upon service or upon receipt of a return of service of the documents referred to in subsection (3)(a), on the respondent, the clerk of the court must— |
| (a) | capture the return of service in the integrated electronic repository; |
| (b) | in the prescribed form and manner notify the complainant thereof; and |
| (i) | a certified copy of the interim protection order; and |
to be served on the complainant in the prescribed manner.
| (8) | Upon service or upon receipt of a return of service of the documents referred to in subsection (7)(c), on the complainant, the clerk of the court must— |
| (a) | capture the return of service in the integrated electronic repository; and |
| (b) | in the prescribed manner, forward certified copies of the interim protection order and of the warrant of arrest contemplated in section 8(1)(a) to the police station of the complainant’s choice. |
| (9) | An interim protection order issued in terms of this section remains in force until it is set aside by a competent court. |
[Section 5 substituted by section 9 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]
