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[2016] ZAGPJHC 408
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Robbertze v Robbertze (A3008/2016) [2016] ZAGPJHC 408 (1 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A3008/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between -
ROBBERTZE
GERT
QUINTON
Appellant
and
ROBBERTZE
ROULIEN
Respondent
JUDGMENT
INTRODUCTION
[1]
The appellant appeals
against
the decision of the Magistrates’ Court (the court
a
quo
) sitting in Roodeport.
[2]
On
28 May 2015, the court
a
quo
granted an IPO against the appellant in terms of Section 5(2)
[1]
of
the Domestic Violence Act, No 116 of 1998 (“
the
Act
”).
The interim protection order (colloquially known as “the IPO”)
was confirmed and made final on 25 August 2015.
The
judgment in respect of the final order bears the date 25 July 2015
even though the court informed parties of the judgment on
25 August
2015.
[3]
At
the hearing of the appeal, the appellant applied for condonation as a
result of his failure to prosecute the appeal timeously
as required
by Rule 50(1)
[2]
of the
Uniform Rules of Court. He alleged that his attorneys were not able
to procure the appeal record timeously, and that he
had not been in
wilful default. The condonation application was not vehemently
opposed. Given the importance of the questions raised
in the matter,
and, the need to restate the law in respect of the procedure to be
followed by the lower courts in adjudicating
domestic violence
interdicts, condonation was granted.
[4]
The issue for determination in this appeal
is whether or not the presiding magistrates were correct in granting
the IPO and the
final protection orders respectively. In addition,
the court is required to determine whether the correct procedure was
applied
in granting the final protection order.
BACKGROUND
FACTS
[5]
The
appellant and the respondent were married to one another. Two
children, aged four (4) years old and eleven (11) months respectively
were born of the marriage at the time of the granting of the final
protection order. On 28 May 2015, the respondent
applied for an IPO in terms of Section 4(1)
[3]
of the Act. The magistrate granted the IPO in terms of Section
5(2)
[4]
of the Act with a return
date, and ordered the appellant not to -
5.1
assault, threaten, emotionally or verbally abuse the respondent;
5.2
enlist the help of another person to commit the acts of domestic
violence specified in 5.1 above;
5.3
have contact with the
respondent
by
email,
Facebook
,
SMS or
What’s Up
except only in matters affecting the minor children.
[6]
The appellant was ordered to only have
contact with the minor children under the supervision of the
respondent. The order prohibited
the appellant from fetching the
children from school.
[7]
The appellant anticipated the return date
by filing an opposing affidavit on 19 June 2015. At the time of
filing his opposing affidavit,
the respondent had in the interim
instituted divorce proceedings with the Roodepoort Regional Court.
The respondent had prepared
a replying affidavit. However, this could
not be provided to the appellant as her attorney of record had not as
yet reviewed it.
The respondent’s attorney had not been
available for the hearing that day. Accordingly, the Court postponed
the matter to
the 29 June 2015.
[8]
On
29 June 2015, when the matter resumed before a different magistrate,
the appellant had objected to what he referred to as a "
bulky
replying affidavit
".
A further objection was that the affidavit introduced surprisingly
new allegations of domestic violence. The fresh allegations
were not
in the initial application.
[5]
The appellant had contended for the new facts to be struck out. In
the alternative, he submitted that an opportunity to submit
a further
affidavit in reply should be afforded to him. The Court was also
informed that, notwithstanding the restriction imposed
on the
appellant’s right of contact with the minor children in terms
of the IPO, he had not been able to exercise his right
of contact
with the minor children fully.
[9]
The
appellant had submitted that there was nothing in the founding
affidavit to support a conclusion that the children were in
danger.
[6]
He
sought an amendment of the order to allow for unrestricted contact
with the minor children. There had been acrimony between the
appellant and the respondent. The magistrate expressed the view that
the dispute in respect of the contact could be referred to
the
Children’s Court, alternatively, the Family Advocate for
resolution
[7]
given the pending
divorce.
[10]
The return date was extended to 27 July
2015. The appellant submits that on the return date, the parties were
merely asked by the
presiding magistrate whether or not they relied
on the papers filed on record. Neither evidence was heard, nor
arguments presented
to the Court. The Certificate of Veracity by the
transcribers states that there was no recording. The rendering of the
judgment
was postponed to 25 August 2016.
[11]
In
confirming
the interim order on the return date, the magistrate dismissed the
appellant’s opposition. The magistrate had placed
reliance on
the decision in
Fakie
NO v CCII Systems (Pty) Ltd
[8]
and held that –
“
[Y]et
motion proceedings are quicker and cheaper than trial proceedings,
and in the interest of justice, courts have been at pains
not to
permit unvirtuous respondents to shelter behind patently implausible
affidavit versions or bald denials. More than 60 years
ago this Court
determined that a judge should not allow a respondent to raise
‘fictitious’ disputes of facts to delay
the hearing of
the matter or to deny the applicants order.”
[9]
[12]
It
merits observing that the order in respect of the judgment confirming
the final protection order refers to the court as having
“
read
the papers filed on record and argument by the parties heard
”.
The relevance of this is with regard to granting the final protection
order; a matter dealt with later in the judgment.
[10]
GROUNDS
FOR APPEAL
[13]
The appellant submitted on appeal that –
13.1
by
relying on the decision in
Fakie
No v CCII Systems
, and finding that
the appellant had raised
a “fictitious
”
dispute of facts, the magistrate had erroneously shifted the onus
which rested on the respondent to the appellant;
13.2
the onus in domestic violence matters is fixed by the presumption of
law and
rested on the respondent. This onus was not satisfied. There
was no factual basis for granting the final protection order. The
order was competent only if the Court was satisfied on a balance of
probabilities that the appellant had committed an act of domestic
violence contemplated in the Act;
13.3
the Court
had incorrectly disregarded the
affidavit filed by the domestic worker in support of the appellant,
while the replying affidavit
which contained new allegations and
evidence, on the other hand, found favour with the Court, despite the
objection raised in respect
of its admission;
13.4
the issue
was taken in the appeal with
regards to the procedure followed by the magistrate. The argument was
that, given the
sui generis
nature of the Act, which cannot be equated for normal motion
proceedings, the Court had failed to direct the proceeding by calling
for oral evidence of the allegations and hear arguments;
13.5
it was submitted that the Court had erred in finding that the
appellant had to exercise
contact with the minor children under the
supervision of the respondent. There had been no allegations that the
appellant had abused
the children. The appellant’s assertion
that he had been the primary caregiver of the minor children had been
ignored;
13.6
the appellant also submitted that the application for the protection
order
had been
an abuse of the court
process as it had been procured to gain the upper hand in the divorce
proceedings.
[14]
The respondent opposed the appeal because it had been agreed to
adjudicate the matter on the
papers filed on record. She submitted
that there had been affidavits filed by five (5) witnesses who had
witnessed the abuse. This
formed part of her replying affidavit. The
appellant had been invited to consider a referral of the matter to
the Children’s
Court. The respondent disputed the allegations
of abuse of the court process. The respondent submitted that a
parenting plan had
resolved the exercise of contact with the minor
children. It was argued at the hearing of the appeal that the matter
had henceforth
become moot as a result.
[15]
I have had regard to the allegations of abuse of the court process
raised by the appellant. The
perception of abuse of the domestic
violence proceedings is not a novel one. They have been observed by
the South African Law Reform
Commission (SALRC) in various discussion
papers
.
[11]
[12]
[13]
Significantly,
the Constitutional Court, in
Omar
v The Government of the Republic of South Africa and Others
(CCT/04); [2005] ZACC 17 at para 18) decision, stated that –
“
[I]t
is crucially important for lawyers as officers of the court with a
responsibility to uphold the Constitution and the law not
to exploit
or manipulate the Act to gain a tactical advantage in divorce
litigation and custody battles, because this could well
be at the
cost of the effectiveness of the Act. As stated by this Court in
Baloyi, legislation of this kind does not purport to
oust existing
family and criminal law remedies and penalties, but to supplement and
reinforce them.”
[16]
I make no direct finding in respect of this allegation. I am
nevertheless duty bound to observe
that such manipulation where it
occurs, will undermine the very protections afforded to real victims
of domestic violence. The
cost of adjudication will become
unaffordable. An undue burden and strain on the court system which
will impede the fair administration
of justice will result.
There
is a duty of
utmost
good faith expected of the applicant in such proceedings.
[14]
[17]
Before delving into the merits of the appeal, it is imperative to
provide details of the allegations
informing the granting of the IPO.
After that, factors which had to be considered as well as the
procedure to be followed before
granting the IPO are addressed. This
approach is also adopted in respect of the assessment of whether the
final order was correctly
granted. I outline the applicable legal
principles, the considerations that ought to have been taken into
account as well as the
procedure which ought to have been followed
before granting both protection orders.
THE
INTERIM PROTECTION ORDER (“IPO”) PROCEEDINGS
[18]
The
respondent had applied for an IPO on 28
May 2015 by completing the prescribed application form ("
Form
2
"). In Section 5 of the
form, she was asked to provide full details of all the incidents of
domestic violence that had
occurred. She stated as follows:
“
Emotional
abuse: continues (daily);
Swearing
at us;
Threatening to take away
my kids;
Slander of myself towards
friends, family, and even strangers;
Contradicts every
instruction I give my child;
Withholds milk from baby;
No
compassion for my medical condition or migraines / endometriosis;
Scares me;
Has locked me out of the
house;
Threatening to take me
off medical aid.”
[19]
Where the respondent was required to provide reasons why the
application was urgent, and to state
why undue hardship will result
if the application is not dealt with immediately, she had stated as
follows:
“
Threatening
to take my children away from me
I am under continuous
stress
He has already taken my
daughter away against my wishes
These circumstances are
not healthy for my children
Please regard as very
urgent.”
[20]
The procedure to be followed before the granting of an IPO must be
understood against the backdrop
of the overall duty of the Court to
assist an applicant. This duty is inherent from the context of the
Act and the provisions of
s 4(2) of the Act.
[15]
It is accepted that notwithstanding the form the domestic violence
may present in, when domestic violence is in the form of emotional
abuse as claimed in this case, it must relate to a pattern of conduct
by a respondent.
[16]
[21]
The plain reading of the allegations before the court
a quo
shows that the respondent had referred to aspects the appellant’s
alleged conduct as constituting emotional abuse. She had,
however,
not provided the Court with details of nature and form of the
emotional abuse alleged. The Court had nevertheless granted
the
interim application even though it lacked in detail. I am of the view
that the granting of the IPO which was lacking in detail
precipitated
the dispute of facts as well as the procedural dilemma which the
Court faced when the IPO became opposed to the return
date.
[22]
When
a
court is seized with an application for an IPO in terms of s 5(1)
of the Act, -
[17]
22.1
the Act requires that the application is considered without
delay;
22.2
section 4(6) of the Act affords an applicant the opportunity
to file
supporting affidavits in support of the application early in the
proceedings;
[18]
22.3
subject to the circumstance of each case, if it appears to
the Court
that there is insufficient information upon which to determine the
nature of the domestic violence or grant an IPO, then,
the Court must
exercise the wide powers provided in s 5(1) to seek additional
evidence it deems fit. This may entail calling
for oral evidence or
evidence by affidavit;
22.4
it may adopt an inquisitorial approach to ascertain any relevant
matter including but not limited to the pattern and nature of the
domestic violence alleged. If necessary, the Court must provide
an
applicant an opportunity to clarify and supplement the affidavit
relied upon before granting the interim order;
22.5
the court may not grant an IPO unless it is satisfied a well-grounded
act of domestic violence was committed and that a
prima facie
case has been made out in the prescribed form;
22.6
it must consider whether or not undue hardship may be suffered
as a
result of the act(s) of domestic violence if the IPO is not granted
immediately. In this regard, the social context of the
applicant, as
well as the risk of harm if an immediate remedy is not provided must
be considered.
[23]
I am of the view that the sparse and vague factual allegations in
Form 2 filed by the respondent
were inadequate grounds for the Court
to conclude that a
prima facie
case had been made out. The
Court ought to have adopted the inquisitorial approach referred to
above, and assisted the respondent
supplement her application papers
before granting the IPO. It was required to satisfy itself that
prima
facie
, a well-grounded act of domestic violence was committed.
This was not done.
[24]
A review of the application papers also reveals that no reasons for
urgency and apprehension
of harm were apparent. Allegations for the
apprehension of harm must be made and substantiated. Before granting
the interim order,
the Court is required to weigh the apprehension of
harm alleged as well as the potential consequence of not granting a
protection
order. It can only do so if adequate facts are before it.
The respondent had not provided the information required on which to
base urgency for granting of the IPO.
[25]
The
benefit of an inquisitorial approach at
an early stage in the proceedings is that the respondent would have
been assisted to place
all the necessary facts before the Court. This
would obviate a need to amend the application, or file a replying
affidavit, and
limit a proliferation of new facts which, as in this
case, would lead to procedural objections and delays if the IPO is
opposed.
OPPOSING
APPLICATION BEFORE THE MAGISTRATE
[26]
In the opposing papers filed before the court
a
quo
,
the appellant had disputed the allegations of emotional abuse and
opposed the order restricting the contact with the minor children.
He
stated that he had been the primary caregiver of the children and
that the application was frivolous and without merit. He alleged
that
the respondent was abusing the court process to justify a denial of
the appellant’s rights of access to the minor children
and to
gain the upper hand in the divorce proceedings.
[19]
[27]
The appellant’s opposing affidavit also outlines a strain in
the marriage relationship
as well as a change in the behaviour of the
respondent following the birth of each of the minor children. He
nevertheless admitted
to an incident of an altercation with the
respondent. He states that this occurred when the respondent came to
the matrimonial
home in the company of work colleagues and moved out
of the home with household items and contents.
[28]
The appellant’s opposing affidavit was supported by an
affidavit from Elizabeth Mecuur,
a domestic worker who was employed
by the parties since 2009. The affidavit confirms that the appellant
had been the primary caregiver
of the children and undertook
additional household chores.
[29]
In her replying affidavit, the respondent confirms her fear of losing
her children, provided
details of marital strife and discord as well
as allegations of verbal abuse and belittling by the appellant.
THE
FINAL PROTECTION ORDER PROCEEDINGS
[30]
I now deal with the above facts before the magistrate and the
procedure followed on the return
date in respect of the granting of
the final protection order.
[31]
The record of the proceedings reveals that on the return date, 29
June 2015, there was confusion
on the procedure to be followed in
respect of objection raised to respondent’s replying affidavit.
The Court did not provide
a ruling on the day. The Court also appears
not to have provided direction to the parties in respect of how the
dispute of facts
alleged was to be resolved. The respondent submits
that parties had agreed to resolve the matter on the papers, a matter
disputed
by the appellant. There appears to have also been confusion
on the appropriate forum to deal with the appellant’s rights of
contact with the minor children.
[32]
The judgment of the court
a quo
does not shed light on how the
matters raised on 27 July 2015 were dealt with. As stated earlier,
the order in the judgment seems
to have been granted on the basis
that argument had been presented and heard. This is contrary to the
appellant’s submissions
during the appeal. The absence of the
record of the proceedings following the further postponement on 27
July 2015 does not assist
me.
[33]
Over and above the evidential and procedural issues in paragraphs 32
and 33 above, in my view,
the affidavit filed in support of the
application demonstrates little correlation between the facts
disclosed and the order limiting
contact with the minor children. The
judgment rendered by the court
a quo
does not provide insight
into reasons for the limitation of the contact. Even when account is
taken of the replying affidavit,
it does not disclose reasons to
conclude that the minor children were at risk of domestic violence.
[34]
Significantly, the order requiring supervised access by the
respondent stands in contradistinction
with the allegations that the
respondent was in fear of the appellant.
Having
regard to the content of the appellant’s opposition and his
assertion that he had been the primary caregiver of the
children,
there was a material dispute requiring that the veracity of the
allegations which required that this is established and
determined
before granting the final protection order.
[35]
The dismissal of the appellant’s opposing affidavit as
“fictitious” without
having tested the claim was
incorrect.
[36]
Based on the facts of this matter and the shortcomings referred to
above, it has become necessary
to restate the law and the procedure
to be followed by a court granting a final protection order in terms
of the Act.
APPLICABLE
LEGAL PRINCIPLES
[37]
The primary guiding principle in the conduct of the proceedings
instituted in terms of the Act
must be to give content to the aim of
the legislature as well the rights contained in the Act. The Act
seeks to provide for an
accessible, affordable, speedy remedy that
affords maximum protection to victims in addition to other remedies
available in law.
[20]
[38]
In this regard, the scheme of the Act is to simultaneously provide
for a civil remedy as well
as a criminal remedy in the form of a
suspended warrant of arrest issued in terms of s 8 of the
Act
[21]
which can be executed
at any time if the protection order is breached. Dealing with the
sui
generis
nature of the remedy provided for in the Act, the Constitutional
Court, in
Omar
v The Government of the Republic of South Africa and Others
[22]
noted that the intention of the legislature was to address a need to
combine a civil and criminal remedy.to protect victims, utilising
an
ex
parte
procedure.
[23]
The legislature
also saw it fit to introduce a different standard of proof (namely
prima
facie
case) in respect of the interim proceedings, and a different standard
of proof (namely on a balance of probabilities) in respect
of
granting a final protection order. In my view, the
sui
generis
intent of the legislature extends further to the adjudication
procedure to be followed. The proceedings envisaged do not lend to
be
categorised into the usual motion proceedings. As a result, on a
return date, an IPO can only be decided and confirmed on the
application papers only if there is no opposition to the application.
[39]
Unlike in other
ex parte
proceedings, which have no bearing on
the rights of another, domestic violence proceedings are intended to
be a departure from
the rule against granting an order in the absence
of a party to protect vulnerable persons. The departure
only
applies to the application for an IPO. While in my view it is a
justifiable limitation of the rights of a respondent in circumstances
of domestic violence, it, however, demands that the final order must
not be granted lightly or on spurious grounds. It demands
of a court
to be alert to the interests of both parties.
[40]
It is not the aim of the Act or the intention of the legislature to
disregard the fundamental
rights to a fair hearing.
[24]
When as in this case, an application is opposed, the procedure to be
followed on the return date is stipulated in Section 6(2)(
a) and (b)
of the Act.
[25]
The
Court is obliged to
hear
the matter. The use of “
must
”
is indicative that the provisions of this section were intended to be
peremptory. As a consequence, when a matter is opposed,
it cannot be
decided purely on the papers if there is a dispute of fact, as was
done in this case. The Court is given wide powers
to proactively
direct the proceedings so as to come to a fair decision.
[41]
The decision in
P
S H v PH and Another
[26]
at para 17 has a relevance where the court held that –
"
[T]he
Act can and should only effectively serve its purpose by the holding
of a proper, fair hearing when the interim order is opposed,
as
envisaged in s 6(2) of the Act. The power of the court to direct
further evidence (presumably one of the ‘wide
procedural
favours’ the second respondent had in mind) can in no way be
interpreted to include a refusal to consider evidence from the
person
against whom a drastic order may be made."
[42]
I have considered the wide powers in s 6 regulating the
proceedings on the return date.
They were designed to enable the
Court to deal with the factual dispute at hand proactively. They are
also designed to strike the
right balance between the need to afford
protection to the respondent on the one hand, and the appellant’s
right to be heard
through a fair procedure on the other.
Providing a fair hearing cannot be equated with
chilling the protections afforded by the Act. The proactive direction
by a court
as well as the inquisition on the facts at hand will have
the effect of ensuring that proliferation of issues, as well as
unnecessary
delays or postponement, are only limited to procuring
essential evidence from third parties / bodies like professionals or
institutions
and only where necessary.
[43]
Where, as in this case, there was a clear dispute of fact, the Court
was required to call for
oral evidence in the matter. It is not open
to the parties to override the provisions of the Act. The Court was
required to –
43.1
adjudicate the matter on an expedited basis to avoid unnecessary
delays;
43.2
consider
any
evidence previously received, as well as further affidavits or call
for oral evidence;
[27]
.
43.3
after the hearing, confirm a protection order if it finds, on a
balance of
probabilities, that the respondent has committed or is
committing an act of domestic violence;
[28]
43.4
when a postponement is sought, it must have regard to the seriousness
of the offence when
exercising
the judicial discretion of whether to grant a postponement. Unless
necessary to procure further evidence or reports from
relevant
professionals or institutions, the Court must avoid a postponement.
[44]
On the facts of this case, the failure to hear oral evidence was a
departure from the procedure
called for before a confirmation of the
IPO
.
There was no justifiable reason to limit the appellant’s
right to a fair hearing during the final confirmation proceedings.
CONTACT
ORDER GRANTED IN RESPECT OF THE MINOR CHILDREN
[45]
It is necessary to deal with the contact order confirmed. The Act
affords a presiding magistrate
with wide powers to “
protect
direct and
secondary
victims
”,
in particular, children from domestic violence. In this regard, there
must be sufficient evidence before the Court to show
that the
children concerned are at risk and will be adversely affected
emotionally or physically if an interim order regulating
contact is
not granted.
Section 7(6)
(a) and (b)
[29]
of the Act
provides a presiding officer with the power to grant ancillary orders
to suspend or limit the contact between a respondent
and a child if
it is in the best interest of the child to do so.
[46]
The purpose of the ancillary order is articulated in
Narodien
v Andrews
,
[30]
namely,
that it is intended to ensure that children who are at risk are
protected from domestic violence. In particular, that the
protection
afforded to an adult applicant is not compromised by the arrangements
relating to contact between the respondent and
any children living
with the applicant.
[47]
In this regard, the Court must assess and determine –
47.1
whether
an ancillary order in respect of
contact is appropriate;
47.2
the type
of care and contact appropriate to
the circumstances; and
47.3
whether
it is in the best interests of the
children concerned.
[48]
If satisfied with the existence of the risk, the Court must ensure
that there is a correlation
between the nature of the domestic
violence complained of and the nature of the protection afforded in
the
interim and/or final protection order.
On the facts of this case, there was no rational connection between
the allegation by the
respondent that she was in fear of the
appellant and the order granted for her to supervise the appellant’s
contact with
the children.
The contact
order did not lend itself to a practical implementation based on the
facts.
[49]
Having regard to the considerations above, and the shortcomings in
the evidence and procedure
followed
by the
court
a quo
,
the appeal must succeed.
[50]
The only matter that remains is that of costs. The appellant was
successful in the appeal. It
follows that the costs must follow the
result. There is no justifiable reason to deprive him of his costs.
[51]
In the circumstances, it is ordered that –
51.1
the final
protection order and the warrant
of arrest are set aside;
51.2
the respondent
is ordered to pay the costs
of the appeal.
NT
SIWENDU AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur:
L
WINDELL J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.
: A3008/2016
HEARD
ON
: 1 AUGUST 2016
ATTORNEYS
FOR APPLICANT
: RIEKIE ERASMUS ATTORNEYS
COUNSEL
FOR THE RESPONDENT
: NICO VAN DER MERWE
ATTORNEYS
FOR THE RESPONDENT
: MATT LARKINS ATTORNEYS
DATE
OF JUDGMENT
: 1 NOVEMBER 2016
[1]
If
a court is satisfied that there is
prima
facie
evidence that –
(a)
the respondent is committing an act of domestic violence; and
(b)
undue hardship may be suffered by the complainant as a result of
such domestic violence if a protection order
is not issued
immediately, 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 against the
respondent in the prescribed manner.
[2]
Where
an appeal lies to a magistrates’ court it may be noted by
delivery if notice within ten days after the date of the
judgment
appealed against.
Rule
50(3): The party noting an appeal shall prosecute same within
twenty days after noting the appeal.
[3]
Section
4(1): Any complainant may in the prescribed manner apply to the
court for a protection order.
[4]
See
p 1
supra
.
[5]
Record
of proceedings, p 77
ll
18-20
[6]
Record
of the proceedings, p 81
ll
14 and 15
[7]
Record
of the proceedings, p 80
ll
25
[8]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at para 35.
[9]
Judgment
of the court
a
quo
on p 95 of the Application Papers.
[10]
Judgment
of the court
a
quo
para 8 p 95.
[11]
Domestic
Violence Report by SALRC (Review of the Child Care Act, SALRC
Project 110 Discussion Paper 2001 at 649): In its investigating
report and discussion papers has reported on instances of a
deliberate escalation of the acrimony between divorcing and
separating
parents through encouraging clients to make false claims
of abuse, or through encouraging women to invoke violence as a way
to
ensure an advantage in parenting and property disputes. It is
reported that this is followed by an application for protection
orders in terms of the
Domestic Violence Act to
frustrate the
attempts of the other parent to see or case for his or her child.
The false allegations continue to enter divorce
proceedings by a way
of lawyers who place allegations of criminal behaviour in affidavit,
material, without substantiation from
child welfare or police
authorities.
[12]
See
discussion in Heaton (ed) 2014 at 489 of
B
v B
[2007] ZAGPHC 306
;
2008 (4) SA 535
(W) and
Norodien
v Andrews
2002 (3) SA 500
(C) as examples of parents abusing the provisions of
Domestic Violence Act to
obtain the advantages in relation to care
of and contact with their children.
[13]
Domestic
Violence reported by SALRC
[14]
National
Director of Public Prosecutions v Basson
2000 (1) SA 419 ( SCA)
[15]
Section
4(2)
states that –
“
[I]f
the complainant is not represented by the legal representative, the
clerk of the court must inform the complainant in the
prescribed
manner –
(a)
of the relief available in terms of this Act; and
(b)
of the right to also lodge a criminal complaint against the
respondent if a criminal offence has been committed
by the
respondent.”
[16]
Section
1 of the Act defines ‘emotional, verbal and psychological
abuse’ as a pattern of degrading or humiliating
conduct
towards a complainant, including –
a)
repeated insults, ridicule, name calling;
b)
repeated threats to cause emotional pain;
or
c)
repeated exhibition of obsessive
possessiveness or jealousy, which is such as to constitute a serious
invasion of the complainant’s
privacy, liberty, integrity or
security.
[17]
Section
5(1) of the Act states that –
“
[T]he
court must as soon as is reasonably possible consider an application
submitted to it in terms of s 4(7) and may, for
that purpose,
consider such additional evidence as it deems fit including oral
evidence or evidence by affidavit, which shall
form part of the
record of the proceedings.”
[18]
Section
4(6) states that supporting affidavits by any persons who have
knowledge of the matter concerned may accompany the application.
[19]
Appellant’s
Opposing Affidavit in the court
a
quo
para 12 p 13.
[20]
Kruger
v
Smith
(2006)
JOL 18555 (W).
[21]
(1)
Whenever a court issues a protection order, the court must make an
order –
a)
authorising the issues of a warrant for the arrest of the respondent
in the prescribed
form; and
b)
suspending the execution of such warrants subject to compliance with
any prohibition condition.
(2)
The warrant referred to in subsection (1) (a) remains in force
unless the protection order is
set aside, or it is cancelled after
execution.
[22]
Omar
v The Government of the Republic of South Africa and Others
(CCT/04) [2005] ZACC 17 at para 18.
[23]
“
the
need to combine civil and criminal remedies to address it have been
recognised by this Court in
Baloyi
.
Victims are ambivalent about their fate and reluctant to go through
with criminal prosecution. It is understandable for the
legislature
to enact measures that differ from those generally applicable to
criminal arrests and prosecutions. It is clear that
the Act serves a
very important social and legal purpose”
[24]
Omar
,
supra
[25]
Section
6(2):
“
If
a respondent appears on the return date in order to oppose the
issuing of a protection order, the court must proceed to hear
the
matter; and –
(a)
consider any evidence previously received in terms of s 5(1);
and
(b)
consider such further affidavits or oral evidence as it may direct
which shall form part of the record of the
proceedings.
[26]
PSH
v PSH and another
Case No 2138/2012
[27]
Omar,
supra
.
[28]
Omar,
supra
.
[29]
If
the court is satisfied that it is in the best interest of any child
it may –
(a)
refuse the respondent contact with such child; and/or
(b)
order contact with such child on conditions as it may consider
appropriate.
[30]
2002
(3) SA 500
(C) at p 31.