Section 12 of the Constitution of the Republic of South Africa aims to provide freedom and security to every person within the Republic. The right to protect is not only recognised in national legislation, international standards such as article 3 of the Universal Declaration of Human rights states that everyone has the right to life, liberty and security. Furthermore, no person should be subjected to cruel, inhumane or degrading treatment (Article 5). Therefore, the right to security and protection when applied and accessed should give effect to the right of dignity as protected by the Constitution.

The above-mentioned rights are key in any matter concerning a protection order. When one applies for a protection order, there must be a reasonable belief that a right has been infringed. Where such infringement is recognised as a criminal offence by law. The aim of a protection order is to protect the complainant against any unwanted conduct from the Respondent. Most importantly, protection orders are enforced to protect and preserve peace in homes to ensure complainants in romantic relationships marriages (married or unmarried), children, those who share the same residences are protected.  

The biggest question to answer is whether foreign nationals are permitted to apply for protection orders in terms of the Domestic Violence Act? Well, to answer the question the Act does not provide a prohibitive clause against foreign nationals. However, the Employment Services Act 4 of 2014, defines a Foreign National as an individual who is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act. Nonetheless, one has to first establish whether such a person requesting such application is a legally recognised foreign national, this is to ensure that such person is in good standing with the laws of the Republic.

In addition, the Domestic Violence Act does not make reference to nationality when referring to a “complainant”. For purposes of the Act, a complainant is defined as any person who is or has been in a domestic relationship with a respondent and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of the complainant. From this definition one can already deduce that the Act does not recognise a “complainant “according to nationality.

It is most probable that many foreign nationals are stuck in violent relationships and they are fearful to approach their nearest police station, law firm, court to be assisted with applying for a protection order.

In as much as the Human Rights Commission aims to protect nationals and non-nationals, there is limited access to rights for foreign nationals, especially those who are not recognised as permanent residents. These rights include to:

• Vote, nor form, lead, campaign or recruit members for a political party;
• Enter, remain in and reside in the Republic as well as obtain a passport;
• A profession, occupation or trade;
• Gain access to land on an equal basis as citizens.

It is important to note that while the rights are limited in their application to non-nationals, they are not completely inapplicable to them and a non- nationals may for instance take up a profession once certain legal conditions are met. In conclusion, nothing prohibits foreign nationals from accessing protection from the law, however, they have a responsibility to ensure that they are in good standing with the law.