Dropping a Protection Order Application and the recourse

H

HyperBudgie

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Hi there,

I hope this is the right place to post this question.

My wife applied for a protection order against a nutcase that was harassing her via whatsapp and email. This guy has loads of money and can afford pretty good legal representation.

The court date came where he was able to contest the order and he arrived with his attorney, we arrived alone. We got eaten alive. The court date was postponed and the magistrate instructed us to get legal representation.
We can not afford an attorney. My wife is also pregnant and it's a high risk pregnancy so she has been told to avoid stressful situations at all costs.

This guy wants the protection order dismissed and wants us to pay his legal costs.

My question is this: How do we just cancel the whole thing and would he still be able to hit us with his legal costs should we withdraw the application?

Any help or advice would be most welcome.

Thanks guys.
 
What a mess.

The law protects the wealthy.

Can't help, but sounds like you need to find an attorney even if its just to chat.
 
Your best bet is to speak to lawyer if you know one who will chat for free.
It doesn't sound right as I doubt the courts would force you to pay his lawyer fees as he did not need to have a lawyer present.
The responsibility is normally on each party to mitigate their damages and therefore he shouldn't have brought a lawyer if he was not willing to pay for it himself.
Speak to a lawyer, they will probably tell you to tell him to get lost, but check anyway. I am no lawyer!
 
First off do you have proof of the Emails etc. ? .
What is the relationship between this guy and your wife ? .
Did you go to a family court for this order ? .
Need more information .
 
If you withdraw the order, he can file for cost. If you filed for a protection order with sufficient evidence, there would have been no need for your own lawyer as in most cases the judge in such matters will take your evidence and decide on it.

BTW: If you approach the courts, be prepared that the other side will defend and by the sounds of it, they have done this well and with structure and enough facts to make the judge question your intentions. Since you have been instructed to get legal representation, you can either do that or withdraw. If you can not afford a lawyer (will probably cost you 8-10K/day) it might be cheaper for you to just withdraw and then absorb the blow of 30-40K (btw: the judge can very well rule a withdrawal without cost, unless of course he feels that your protection order was of malicious intent).

Be aware that a withdrawal could very well result in follow-up issues (i.e. the other party could file suit for libel/slander etc).

BTW2: Considering the consequences of a protection order served on the other party (in essence a suspended warrant of arrest), I fully understand that the other party would bring lawyers to defend right away. Also, since the judge has not issued an interim protection order, it seems plausible, that evidence is not strong.

For anyone not knowing the purpose of a protection order: It is to seek immediate protection in cases of domestic violence / sexual harassment - in severe cases a interim protection order can be issued within hours and is in essence a suspended warrant of arrest.
 
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Meh - some of my comments above are not 100% right - just spoke to my lawyers:

@OP - what is not clear: AFAIK, in order to get a protection order you have to file for an interim first. So I guess, that you filed the interim PO which was served to the respondent and the hearing you described is now the hearing for the permanent protection order? So the IPO was served and the abuser did not violate the interim protection order - right?

So the "hearing" you described was in the magistrate's chambers with the respondent and his representatives. You would have brought your own witnesses and the magistrate would have asked questions. I learned from my legal eagles, that during that session you could have asked to have the protection order be set aside if you feel that it was not worth it. (The respondent could then very well pursue separate legal action for libel etc)

It is unclear if the postponement is attempting another "return date" for the hearing of the permanent protection order or if it is the actual trial date as the abuser has contested the permanent protection order. Even for the trial you do not require legal representation - it is in essence a examination of what happened. The respondent/lawyer is not allowed to address your wife directly as part of the cross-exam, but has to relay questions via the magistrate. There are also a ton of procedures to follow.

If the court finds that you acted maliciously when applying for a PO, the court may very well order that costs against you be awarded.

See if Legalwise is able to assist - https://www.legalwise.co.za/index.php/products-services/compare-products/

Got some more info from my lawyers - you can contact http://www.powa.co.za/ or http://www.legal-aid.co.za/ for assistance in that matter.. Most universities will also have campus law clinics and might assist, but Powa is probably the best choice.
 
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We got the interim protection order. This is the hearing where he gets to defend himself or get a 5 year order against him. He brought a lawyer and the judge deemed it unfair that he have legal representation and we did not so the magistrate postponed the hearing and said that we should seek legal council. He said that he postponed it in order to give us time to acquire legal representation.

We can't afford a lawyer. This is why we are considering dropping the whole thing. We have all the evidence printed out etc but the magistrate didn't even have a look at it. Said it wasn't fair contest and we needed legal representation because mr crazy had legal representation.

Not sure what to do.
 
HyperBudgie said:
We got the interim protection order. This is the hearing where he gets to defend himself or get a 5 year order against him. He brought a lawyer and the judge deemed it unfair that he have legal representation and we did not so the magistrate postponed the hearing and said that we should seek legal council. He said that he postponed it in order to give us time to acquire legal representation.

We can't afford a lawyer. This is why we are considering dropping the whole thing. We have all the evidence printed out etc but the magistrate didn't even have a look at it. Said it wasn't fair contest and we needed legal representation because mr crazy had legal representation.

Not sure what to do.
Click to expand...

That makes no sense, the anti-harassment law was designed in such a fashion that the abused does not require legal representation. The clerks of the court should have explained to you guys the process. If an IPO was already granted, the magistrate felt strongly about your case in the first place. I would then seek out assistance from Powa or Famsa. If an IPO was granted, the magistrate felt that the background is severe enough and it would be a poor choice for backing down now. Just think about how a withdrawal would affect your wife and your family if you withdraw now. I would seek the financial assistance of family/friends or one of the organisations I mentioned.

If you feel uncomfortable to represent yourself, you can perhaps ask the clerk of the court if there is free representation. I think it might be safer to rely on your own legal representation and it would probably not cost more than 10K (3 hour prep, 3 hour court) - most lawyers will let you "lock in" a fixed cost.
 
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