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[2020] ZAWCHC 90
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P.P.S v T.L.S (A239/2019) [2020] ZAWCHC 90 (2 September 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: A239/2019
In
the matter between
PPS
APPLELLANT
and
TLS
RESPONDENT
Coram:
Henney and Rogers JJ and Martin
AJ
Heard
:
21 August 2020
Delivered:
2 September 2020
JUDGMENT
Rogers
J (Henney J and Martin AJ concurring)
[1]
The appellant, Mr [PPS]
,
appeals against an order forbidding him from entering the residence
he shares with the respondent, Mrs [TLS]
.
The parties are married in community of property. The order was made
in terms of s 7(1)(
c
)
of the Domestic Violence Act 116 of 1998 (‘the DVA’). The
impugned order was made on 25 June 2019. Because of the
pending
appeal, Mr [PPS] has not as yet left the home.
[2]
The appeal was first
enrolled for hearing on 9 December 2019. The appellant was
represented by counsel. There was no appearance
for the respondent.
Although argument was provisionally heard, the state of the record
was unsatisfactory. After the hearing, it
appeared that I and the
acting judge allocated to the case might disagree on the outcome. The
appeal was thus postponed to 28 February
2020 with directions for the
supplementation of the record. Due to a misunderstanding, there was
no appearance for the appellant
on the latter date, by which time in
any event the record had not yet been supplemented. By that stage,
Martin AJ had taken the
place of the previous acting judge whose
acting appointment had terminated.
[3]
The appeal was thus
further postponed. The court thought it desirable to request the Cape
Bar Council to nominate an advocate to
act as an
amicus
curiae
with a view to
advancing all arguments that could properly be made on behalf of the
absent respondent. A third judge, Henney J,
was added to the panel,
to ensure that there would be a majority in the event of
disagreement. The Covid-19 pandemic delayed the
further hearing of
the appeal, which eventually took place on 21 August 2020.
[4]
The appellant was
represented by Mr W Fisher. Ms N Mbangeni appeared as an
amicus
curiae
. The court
expresses its gratitude for her helpful submissions.
[5]
The date on which the
parties got married does not appear from the record, but the marriage
appears to have subsisted for some years.
According to Mrs [TLS], the
shared residence was bought for her by her father. By virtue of the
community marriage, the parties
now own it in equal shares. They have
four children. At the time of the proceedings in the court
a
quo
, ie June 2019, the
oldest son, [VDS], was 18. There were three younger children aged 18
(a son), 12 (a daughter) and 9 (a son).
All four children live in the
home with their parents.
[6]
On 2 May 2019 Mrs [TLS]
applied for a protection order against her husband in terms of the
DVA. She alleged emotional and verbal
abuse and that Mr [PPS]
insulted her in front of the children. Because [VDS] took her side,
this brough the son into conflict with
his father. Mr [PPS] allegedly
threatened that he would eject her and the children from the house.
She did not want to stay under
the same roof as him. Apart from
seeking interdicts against the committing of acts of domestic
violence, she asked for an order
prohibiting him from entering the
home.
[7]
The court
a
quo
granted an
ex
parte
interdict
against the abuse but did not at that stage make an order prohibiting
Mr [PPS] from entering the shared residence. The
return day of the
interim order was 8 July 2019.
[8]
On a date which does not
appear from the record, Mr [PPS] applied for a protection order
against [VDS]. Mr [PPS]’s application
is not part of the record
but he testified that he brought it before his wife launched hers. It
is unclear whether an interim order
was made. Be that as it may, Mr
[PPS]’s application for a final order served before the court
a
quo
on 25 June 2019.
The magistrate heard evidence from Mr [PPS] and [VDS]. Given the
mother’s centrality in the domestic conflict,
the magistrate
said that she wanted to hear from her. She was told that Mrs [TLS]
was outside.
[9]
Mrs [TLS] was thus called
in to testify. She described her husband’s alleged abusive
behaviour. When the magistrate asked
her what she had done about it,
Mrs [TLS] told the court of her application for a protection order.
Although the return day of
that application was 8 July, the
magistrate called for the file and placed the matter on the roll. She
confirmed with Mr [PPS]
that he had received the interim order. The
hearing of the two applications then proceeded on a consolidated
basis.
[10]
The magistrate asked Mr
[PPS] to suggest a solution to protect the three family members from
each other. Mr [PPS] proposed that
all three should be granted
protection orders to ensure mutual respect. The magistrate expressed
the opinion that [VDS] was essentially
a good youngster, and that the
problem was not so much with him as between Mr and Mrs [TLS]. Mr
[PPS] agreed.
[11]
The magistrate suggested
that bringing [VDS] to court would not help; what the parties needed
was a break from each other. Mrs [TLS]
intervened to say that she did
not want anything more to do with her husband. Even if she had to
sell the house and give him his
half-share, that would be fine; he
just needed to be away from her.
[12]
The magistrate told Mr
[PPS] that she could not grant the mutual protection orders he had in
mind. She was also not in a position
to tell [VDS] that he had to
obey his father. She would grant him a protection order against [VDS]
because the latter was very
angry with his father:
‘
But I will
remove you from that house. That is for the protection of that woman
together with her children from you. You will have
to go and find a
place to stay for yourself until such process where there is a
divorce process and then you fight for your share
if you need to.
Even though you are
married in community of property, it is clear to me … from
your evidence that this is not your house.
You met her. She had a
house. You stayed with her, she had a house…
However, this court
is not blind to the fact that there is danger in this house with you
staying with these people because you are
alone. You are alone there.
And she and the two boys … or let me say she and this boy that
has shown to you that anything
may happen, it is best that you are
moved out in your protection and with the protection [indistinct]
together with your children.
This does not take
away the fact that you are in community of property. You know at the
back of the mind this is not your house.
You will be gaining because
of marriage. You had nothing to put towards the house. If this court
moves you out of the house, you
are not losing anything because there
is nothing that you have put for the house. This is a matter for
divorce. It is not a matter
for this court … So, moving you
out of the house is not going to be prejudicial to you because you
are losing nothing …
…
And from
today, I will give you a month to look for place to stay. I will
state in the protection order from today – that
is 25 June
until 25 July you stay in that house. On the 26
th
you must have moved yourself to find a place and leave these people
in peace in that house …
If you want to lodge
a divorce you can still lodge a divorce … The order that I am
ordering now, the High Court, the divorce
court has authority to set
it aside in cases of divorce where the court may order that you may
move back into your house, to have
your house sold and share the
proceeds. But until that day when you both approach the High Court,
this order stands.
[13]
The magistrate asked
whether he wished her to explain the above to him in isiXhosa. Mr
[PPS] appeared to want to tell the magistrate
about his contributions
to the house, but she interrupted him, saying that whatever he had
done was done out of love for the benefit
of himself, his wife and
the children, and that he could raise those issues if and when there
were divorce proceedings. The magistrate
again emphasised the stress
and anxiety which he was causing to Mrs [TLS] and [VDS]. There was,
she observed, in truth no marriage
in the home because the parents
were sleeping in separate rooms.
[14]
After further
inconsequential dialogue, the magistrate formalised the terms of the
protection orders granted in Mr [PPS]’s
favour against [VDS]
and in Mrs [TLS]’s favour against Mr [PPS]. Mr [PPS] does not
appeal against the final interdicts against
abuse, although his
counsel did not concede that the evidence on that aspect was fully
and fairly canvassed. Mr [PPS] does, however,
appeal against the
order that he may not enter the shared residence as from 1 August
2019. For convenience only, I shall refer
to this as the eviction
order.
[15]
Despite the fact that the
marital relationship had broken down and the parties had been living
in separate rooms for several years,
neither party had instituted
divorce proceedings against the other. Mr Fisher informed us that
this was still the position. We
do not know why neither party has
taken the initiative. It does not appear to be because they still
love each other.
[16]
Mr Fisher submitted that
Mrs [TLS] had not sought an eviction order in her application. It is
clear, however, from paras 7(e) and
8(h) of her application that she
indeed did so. What is true is that at the interim stage the court
a
quo
did not grant an
eviction order. That is understandable. The proceedings were
ex
parte
, and it is
difficult to envisage circumstances in which an
ex
parte
eviction order
would be justified.
[17]
Mr Fisher argued that in
any event the evidence did not justify an eviction order and that its
imposition had been procedurally
unfair. I think it unwise at this
stage to express an opinion on whether an eviction order against Mr
[PPS] was or is substantively
warranted, not least for the reason
that if the procedure followed in the court
a
quo
was materially
deficient we cannot know that we have all the evidence relevant to
the question.
[18]
Before addressing
procedural fairness, however, I wish to make two observations arising
from Mr Fisher’s submissions on the
merits. First, he argued
that emotional, verbal and psychological abuse was less serious than
physical abuse, and that an eviction
order was more likely to be
warranted in the latter case than in the former. I cannot endorse
that view. Depending on the circumstances,
emotional, verbal and
psychological abuse may be as, or more, damaging for its victim than
physical abuse, particularly where the
non-physical abuse is
sustained.
[19]
Second, Mr Fisher made
reference to s 7(7)(
b
)
of the DVA, which provides that if the court is of the opinion that
any provision of the protection order deals with a matter
that
should, in the interests of justice, be dealt with further in terms
of any other relevant law, the court must order that such
provision
shall be in force for a limited period only, in order to afford the
party concerned the opportunity to seek appropriate
relief in terms
of such law. He argued that an ‘eviction order’ in terms
of s 7(1)(
c
)
of the DVA implicated the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (‘PIE’),
and
that an eviction order under the DVA should thus be for a limited
period only, so as to allow the complainant to seek relief
in terms
of PIE.
[20]
The flaw in that argument,
as was pointed out by Ms Mbangeni, is that PIE only governs the
eviction of an ‘unlawful occupier’,
ie a person occupying
land without the express or tacit consent of the owner or person in
charge or without any other right to
occupy the land. At least in a
community marriage where the property in question forms part of the
community estate, the right
to give and withdraw consent vests in the
spouses jointly, so that one spouse cannot become an ‘unlawful
occupier’
simply because the other spouse does not want him or
her to live there. (It is unnecessary to express an opinion on the
case where
the parties are married out of community of property and
the land in question belong solely to one of them.)
[21]
Turning then to the
question of procedural fairness, the earnest quest to give effect to
the important objects of the Act cannot
come at the expense of due
process.
In
De
Beer NO v North-Central Local Council and South-Central Local Council
&
others
(Umhlatuzana Civic
Association
Intervening)
[2001]
ZACC 9
;
2002 (1) SA 429
(CC) Yacoob J said the following in para 11
with reference to s 34 of the Constitution which
promises
a fair hearing to anyone involved in a justiciable dispute that can
be resolved by the application of law:
‘
The
right to a fair hearing before a court lies at the heart of the rule
of law. A fair hearing before a court as a prerequisite
to an
order being made against anyone is fundamental to a just and credible
legal order. Courts in our country are obliged
to ensure that
the proceedings before them are always fair. Since procedures
that would render the hearing unfair are inconsistent
with the
Constitution courts must interpret legislation and rules of court,
where it is reasonably possible to do so, in a way
that would render
the proceedings fair.’
(See
also
PSH v PH &
another
[2013] ZAECGHC
90 paras 17-18 specifically in the context of the DVA, and
Ramadwa
v
Kokodi
2018] ZAGPPHC 714 paras 13-16 in
relation to an ‘eviction order’ granted under the kindred
provisions of the Protection
from Harassment Act 17 of 2011.)
[22]
As will be apparent from
my description of the proceedings, this was an unusual case. Mr [PPS]
went to court on 25 June 2019 as
an applicant in order to obtain
final relief against [VDS]. He did not arrive there prepared to
defend himself against Mrs [TLS]’s
application, which was only
due to be heard on 8 July. He would thus have been taken by surprise
when the magistrate, midway through
the hearing, caused Mrs [TLS]’s
application to be placed on the roll, thus effectively accelerating
the return day.
[23]
It is unclear whether Mr
[PPS] knew that his wife was seeking an eviction order. In terms of
s 5(3)(
b
)
of the DVA, an application should be served on a respondent together
with the interim order. While it may be a fair inference
that that
was done in the present case, the only thing which the magistrate
expressly confirmed with Mr [PPS] was that he had received
the
interim order.
[24]
Apart from the fact that
Mr [PPS], on 25 June 2019, had not come to court prepared to deal
with his wife’s application, the
interim order on its own would
not have alerted him to the danger of eviction. The interim order
specified the interim interdicts
against abuse, invited him to appear
on the return day to give reasons why the interim orders should not
be confirmed, and warned
him that if he did not so appear the interim
orders might be made final. The interim order did not warn Mr [PPS]
that although
an eviction order had not yet been granted, such an
order would or could be granted on the return day. (This appears to
be a deficiency
in the standard Form 4 prescribed for use as an
interim protection order. The standard form should make provision for
relief which
the applicant will be seeking on the return day, even
though such relief had not yet been granted on an interim basis.)
[25]
If Mr [PPS] had been aware
that his wife was seeking an eviction order against him, he might
have wanted to have legal representation.
If the return day of his
wife’s application had not been anticipated, it is conceivable
that on 8 July 2019 he would have
been legally represented.
[26]
An order interdicting a
respondent from committing an act of ‘domestic violence’
(s 7(1)(
a
))
effectively prevents the respondent from doing that which is in any
event unlawful. By contrast, an eviction order under s 7(1)(
c
)
prevents the respondent from doing that which would otherwise be
lawful. Without wishing to suggest that exceptional circumstances
need to be present before such an order is granted, particular care
must nevertheless be taken to ensure that the granting of such
an
order is justified. It is not unusual, in cases of domestic violence,
for the complainant and respondent to share a residence.
In a sense,
one might say that the most effective way of ensuring that an
interdict against abuse is complied with is to exclude
the offending
party from the home, but I do not think that the lawmaker intended
that exclusion from a shared residence should
be the norm simply
because it would make interdicts more effective.
[27]
Furthermore, an eviction
order implicates a respondent’s right to adequate housing in
terms of s 26 of the Constitution and
may also, as in the present
case, implicate his or her right to property under s 25 of the
Constitution. This is by no means to
suggest that such a respondent’s
constitutional rights are paramount, because the complainant has
important constitutional
rights as well, including a right to dignity
(s 10) and the right to freedom and security of the person and to
bodily and psychological
integrity (s 12). Nevertheless, when
the grant of an eviction order in terms of s 7(1)(
c
)
of the DVA is being considered, the court must give due consideration
to the respondent’s constitutional rights and must
determine
whether the inroad on the respondent’s rights is truly
justified by the circumstances.
[28]
It thus seems to me that a
court considering the grant of a s 7(1)(
c
)
order should warn the respondent that such an order is being
contemplated. Because of the significant prejudice which its grant
may entail, the respondent should be told of his or her right to
legal representation and be afforded an opportunity of getting
such
representation if he or she so wishes (cf s 14 of the DVA which
provides that any party to proceedings in terms of the
Act may be
represented by a legal representative). This need not mean a lengthy
postponement. Since an eviction order entails a
balancing exercise,
the court should elicit information
inter
alia
about the
potentially prejudicial implications of the order for the respondent
and children. As a bare minimum, the court should
elicit information
about the respondent’s ability, including financial resources,
to obtain alternative accommodation. Where
the parties’
children reside in the shared residence, the respondent’s
access to his children in the event of an eviction
order being
granted should also be taken into consideration.
[29]
It is clear that in the
present case the procedure followed by the court
a
quo
fell well short of
the requirements of basic fairness. After hearing Mrs [TLS]’s
evidence (at that stage in the context of
Mr [PPS]’s
application against [VDS]), the magistrate placed her application on
the roll, and immediately turned to the question
of a suitable
‘solution’. She heard no further evidence. She did not
invite Mr [PPS] to reply to Mrs [TLS]’s
evidence. She did not,
in advance of the passages I have quoted at some length from her
decision, warn Mr [PPS] that she had an
eviction order in mind. She
did not ascertain from him whether he was aware that his wife had
been seeking such an order. She did
not ask him whether he wanted
legal representation. She made no enquiries about his ability to
obtain or afford alternative accommodation.
[30]
The magistrate also seems
not to have applied her mind to the effect which the eviction order
would have on Mr [PPS]’s access
to his children, something
which implicated not only his interests as a parent but their rights
as children. The DVA’s concern
for the interests of children in
relation to protection orders is apparent from ss 5(1A) and
7(6). Although the evidence indicated
a fraught relationship between
Mr [PPS] and [VDS], and to a lesser extent between him and the second
son [TS], the eviction order
effectively cut off Mr [PPS]’s
usual access to all four children. Such an order may turn out to be
justified, but the court
a
quo
did not place
itself in a position to make an informed assessment.
[31]
Another matter which the
court
a quo
should have investigated before coming to a decision was the effect
if any which the interim order had already had on Mr [PPS]’s
behaviour. By 25 June 2019 the interim interdicts against abuse had
been in place for about seven weeks. In order to determine
whether
eviction was essential to bring the abuse to an end, it would have
been important to know whether the interim orders had
already done
so.
[32]
Ms Mbangeni acknowledged
that the procedure followed by the court
a
quo
was
unsatisfactory. Both she and Mr Fisher agreed that if we were to find
that the procedure in the court a quo had been materially
unfair, the
proper course would be to remit the question of an eviction order to
the court
a quo
for reconsideration. The court
a
quo
will need to give
the parties a fair opportunity to adduce evidence and make
submissions on the question of an eviction order.
The court may need
to be proactive in eliciting information. Given the lapse of time, it
would be appropriate for the court
a
quo
to inform itself
as to what has been happening in the home since June 2019. (This
remittal will leave untouched the confirmation
of the interdicts
against abuse.)
[33]
As to costs, Mr Fisher in
his heads of argument simply asked for the relief set out in his
client’s notice of appeal. The
notice of appeal does not deal
with costs. In any event, Mrs [TLS] did not oppose the appeal. The
deficiencies in the procedure
followed in the court
a
quo
were not of her
making. I thus consider that there should be no order for costs in
the appeal.
[34]
I thus make the following
order:
(a) Para 2 of the order made by
the court
a quo
on 25 June 2019 is set aside.
(b) The matter is remitted to the
court
a quo
to determine whether the grant of
an order in terms of s 7(1)(
c
)
of the
Domestic Violence Act 116 of 1998
is warranted, after hearing
such evidence and argument as the parties may wish to adduce and
make, and after eliciting such information
as the court
a
quo
may consider
desirable, having regard to the principles laid down in this
judgment.
(c) No order as to costs is made
in the appeal.
_______________________
O L
Rogers
______________________
Henney J (concurring)
______________________
Martin
AJ (concurring)
APPEARANCES
For
Appellant
W
Fisher
Instructed
by
N
Allen Attorneys
Room
11, First Floor,
Leisureland
Building
11
Robert Sobukwe Road
Bellville
For
Respondent
No
appearance
Amicus
Curiae
N
Mbangeni
Cape
Bar