About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 447
|
|
Johnstone v SLS (A3167/18; 1731/2017) [2020] ZAGPJHC 447; 2022 (1) SACR 250 (GJ) (13 May 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appeal
Case No: A3167/18
Court
a quo
Case No: 1731/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
13/05/2020.
In
the matter between: -
GLEN
JOHNSTONE
Appellant
And
S
[....] 1 L [....] S [....]
2
Respondent
JUDGMENT
Windell
J:
INTRODUCTION
1.
This is an appeal against the granting
of a final protection order in terms of the
Domestic Violence Act 116
of 1998
.
2.
The respondent (complainant in the court
a quo
)
is a 21 year old female, employed as an
au
pair
. She applied for an interim
protection order against the appellant, a 26 year old male and her
erstwhile boyfriend (the respondent
in the court
a
quo
). An interim protection order
was granted against the appellant on 20 October 2017 and confirmed on
13 August 2018. No oral evidence
was called for by the court
a
quo
and the matter was decided on
affidavit.
3.
It
is common cause that the appellant and the respondent were in a
romantic relationship. Although the relationship ended in May
2017,
the parties decided to keep contact and to “re-evaluate”
their relationship in January 2018. After some time
passed the
relationship between the parties turned sour and the respondent
requested the appellant to stop any further contact
with her. Despite
several requests to stop any communication, the appellant continued
to send the appellant numerous WhatsApp
[1]
messages per day and phoned her continuously. After ultimately
threatening her on 13 September 2017 that he would “
make
her
life
hell
”,
and that he had “
more
than enough
”,
two fake Instagram accounts were opened in the respondent’s
name, false Gumtree advertisements were posted with her
personal
details, her parents were reported and investigated by the SAPS for
possession of unlicensed firearms, and on 18 October
2017, a
complaint was made against her at St Benedict’s school that she
assaulted the child she was looking after. The respondent
averred
that the appellant was responsible for all these actions and that it
amounted to harassment. She consequently approached
the Magistrate’s
Court for an interim protection order on 20 October 2017.
4.
The appellant admitted that he sent the
respondent hundreds of WhatsApp messages, phoned her constantly,
tracked her phone, and
that he threatened her on 13 September 2017
that he would make her life hell. He, however, contended that his
actions did not constitute
harassment and that he stopped
communicating with the respondent weeks before she applied for the
protection order. He submitted
that his behaviour was normal and the
communication exchanged between them was part and parcel of their
relationship. He regretted
threatening the respondent on 13 September
2017 but said that he had apologised to her for his behaviour on the
same day. He denied
that he was responsible for any of the subsequent
events and contended that one of the respondent’s old school
friends might
be responsible for bullying her.
5.
The court
a
quo
found that the communication
between the parties (during and after the relationship) had a certain
volatility to it and that the
texts, on a balance of probabilities,
showed that the appellant committed “acts of domestic
violence”. The Magistrate
further found that in the absence of
a court order the appellant would have continued committing acts of
domestic violence and
that he only stopped when the interim order was
granted against him. The court
a quo
consequently issued a final protection order and ordered the
appellant not to commit the following acts of domestic violence:
stalking, harassment, controlling and/or abusive behaviour towards
the respondent and not to communicate with the respondent directly
or
indirectly in any way whatsoever. It is this finding that is the
subject of this appeal.
6.
The
Domestic Violence Act
(“the
Act”) came into operation in 1998. In the preamble the purpose
of the Act is described as a measure:
“
.......
to afford victims of domestic violence the maximum protection from
domestic abuse that the law can provide: and to introduce
measures
which seek to ensure that the relevant organs of State give full
effect to the provisions of this Act, and thereby convey
that the
State is committed to the elimination of domestic violence…”
[2]
7.
The Act recognizes,
inter
alia
, that victims of domestic
violence are among the most vulnerable members of society; that
domestic violence takes on many forms;
and that it may be committed
in a wide range of domestic relationships. The Act defines domestic
violence as (a) physical abuse;
(b) sexual abuse; (c) emotional,
verbal and psychological abuse; (d) economic abuse; (e) intimidation;
(f) harassment; (g) stalking;
(h) damage to property; (i) entry into
the complainant's residence without consent, where the parties do not
share the same residence;
or (j) any other controlling or abusive
behaviour towards a complainant, where such conduct harms, or may
cause imminent harm to,
the safety, health or wellbeing of the
complainant.
8.
The
Act provides for a very simple, inexpensive procedure. Any person in
a “domestic relationship”
[3]
,
complaining about an act of domestic violence, can approach a
Magistrate’s Court and apply for urgent relief. A standard
form
is completed and on receipt of the complaint the Magistrate has two
choices:
if
the court is satisfied, firstly, that there is
prima
facie
evidence that the respondent is committing or has committed an act of
domestic violence and, secondly, that undue hardship may
be suffered
by the complainant as a result of the violence if an order is not
issued immediately,
an interim order must be issued. If not so satisfied, the respondent
is called to court to show reason why a final protection order
should
not be granted.
If
the respondent appears on the return date to oppose the application,
a hearing must take place. The court must consider any evidence
previously received, as well as further affidavits or oral evidence
as it may direct.
After
the hearing the court must issue a protection order if it finds, on a
balance of probabilities, that the respondent has committed
or is
committing an act of domestic violence.
9.
The
respondent approached the Magistrate’s Court at Boksburg for
urgent relief in terms of section 5(2) of the Act.
The respondent
was, at the time, unrepresented. She completed the standard form
provided for in terms of the Act, wherein she set
out the reasons why
she was seeking a protection order against the appellant. She stated
that during her relationship with the
appellant he was very
possessive and controlling, and would some days WhatsApp and call her
more than 100 times if she didn’t
answer her phone. He would
track her phone to check where she was and would question her if she
switched off her phone. After she
ended the relationship in May 2017,
the incessant messaging and phoning continued and when she requested
the appellant to stop
contacting her, he refused to leave her alone.
When she blocked
[4]
him on
WhatsApp, he would send her messages on “iMessage”.
[5]
She threatened to take the appellant to court but he told her that
she did not have enough money or that the “
court
would throw it out
”.
On 13 September 2017 during a phone call the appellant told the
respondent that he would ruin her life. She confronted
him in a
WhatsApp message and asked him what he meant by ruining her life. He
answered “
I
won’t tell you I will do it
I
have more
than
enough
”.
A few days later a fake Instagram account was opened in the
respondent’s name. As they had unfollowed and blocked
[6]
each other on all social media platforms i.e. WhatsApp, Facebook
[7]
and Instagram
[8]
, she knew it
had to be the appellant that was responsible for the fake Instagram
account as some of the photos that were posted
originated from his
phone. Some of the other photos that were posted on Instagram were
taken from her father’s, cousin’s
and current boyfriend’s
Facebook pages. The Instagram account was removed by Instagram on 17
October 2017 after she laid
a complaint. False adverts in Gumtree for
boilermakers and technical assistants with her name and telephone
number were also posted
during this period and on 18 October 2017 the
principal at St Benedictas School received an email from a “mom”,
complaining
that the respondent was hitting the boy she was looking
after, including the respondent’s full name and particulars of
the
motor vehicle she was driving. After speaking to her employer and
the principal it was determined that the personal particulars
of the
“mom” referred to in the email received by the principal
was not in their records. The respondent’s parents
were also
suddenly being investigated by the police for possession of
unlicensed firearms. She suspected that the appellant was
the one
that called the police and told them that her parents had unlicensed
firearms because he was the only person that knew
about the firearms.
She stated that:
“
It
is clear from everything that he has done or we suspect he has done
that he has intentionally and willingly spent many hours
thinking
this through and actioning everyone of these false actions to either
harass or personally attack my character, my emotional
state and my
family. During our relationship he threatened to kill himself if I
left him. This played on my emotions and only now
do I realize that
he was emotionally black mailing me as he had told me that he had
tried it once before. I know for a fact that
he was institutionalized
for that“
10.
Attached to the application the
respondent attached a “Report an Impersonation Account on
Instagram”, various WhatsApp
messages, Gumtree adverts,
screenshots of Instagram photos, and posts.
11.
The appellant filed an answering
affidavit wherein he admitted that he sent the respondent several
WhatsApp messages a day, but
denied that he was harassing her. He
stated that they had broken up by consent and that he attempted “
in
his own way and fashion
to
repair the damage
” as he did
not want the respondent to “
feel
low or unwanted
”. He also
wanted some closure and to move on. He stated that the respondent
would keep him “
hanging
”
or would not respond to questions that he was posing and hence
further clarity was required and explains the large amount
of
messages received. He admitted that she asked him to stop messaging
her, and that she was, at times, unfriendly and aggressive
towards
him, but that he did not know how to react as she was constantly
“
blowing hot or cold
”.
He admitted that the respondent would, on occasion, block him on
WhatsApp and that he phoned her on many occasions but
that she did
not answer the calls.
12.
According to the appellant the messages
should be looked at in context. They were boyfriend and girlfriend,
if he phoned too much
he would be in trouble and if he phoned too
little he would be in trouble. He admitted that he tracked the
respondent’s phone
movements, but stated that it was done by
mutual consent and she tracked him as well.
13.
He
submitted that the respondent could have easily blocked him on
WhatsApp if she found his messages abusive. He admitted that his
messages were, on occasion, rude but it was when he had been provoked
by her as she sent him rude and aggressive messages in which
she
swore at him. He admitted that she told him on many occasions to
leave her alone. He explained it as follows:
“
Although
I sent her multiple messages in August and September and I concede
that on occasion she would not reply I would repeat
my messages and
that she also on occasion requested me to stop messaging her. I
repeated my messages as I did not get a response
or a proper response
from her and she would frustrate me.
14.
The
respondent blocked the appellant on WhatsApp on 30 August 2017 and
unblocked him on 11 September 2017. She blocked him again
on 14
September 2017 and unblocked him on 19 September 2017. On 20
September 2017 she blocked him and did not unblock him again.
The
appellant admitted that during one of the “block periods”
and on 31 August 2017 he communicated with the respondent
via
iMessage and asked her why she was not responding. He sent her four
messages. He further admitted that she threatened him with
court and
that he said that he did not believe that he committed an act of
domestic violence.
15.
He denied setting up two fake Instagram
accounts or placing adverts on Gumtree. He further denied that he was
the one that emailed
St Benedict School or the person responsible for
contacting the SAPS and reporting that the respondent’s parents
were in
possession of unlicensed firearms. He stated that when the
respondent applied for the interim order he had already stopped
communicating
with her in any way or format.
16.
The respondent stated that the appellant
had always been obsessive, manipulative and controlling. To
substantiate these allegations,
all the WhatsApp communication
between the parties from February 2017 to September 2017 was made
available to the court
a quo
.
There are thousands of messages. The communication pre-break up shows
a disturbing pattern of obsessive and jealous tendencies
from the
appellant. The examples are far too many to form part of this
judgment, but, as an example, and to illustrate the manner
in which
the appellant communicated with the respondent, the messages
exchanged during the weekend of 19 March 2017 to 21 March
2017, when
the respondent attended a family wedding without the appellant, are
set out below. On 19 March 2017 the appellant sent
the following
messages:
15:52.46:
Can I please have photos of your room
15:53:23:
Can you please send me photos of yourself
15:53:27:
Full long photo
15:55:
09: Glen, I’m in the middle of a wedding and you call like that
15:56:26:
Are there no photos of you with your shoes a full photo of you
please??
15:56:35:
And photos of your room
15:56:41:
Can I please have photos of your room
15:56:51:
Can you please send me photos of yourself
15:56:55:
Full long photo of you
15:57:17:
Please I am asking nicely for these photos
15:57:52:?
15:58:23:
Did you take photos of your room?
15:58:25:
(emoji)
16:01:02
Why you ignoring me now
16:01:06
(emoji)
16:01:08:???
16:01:17:
Are there no photos of you with your shoes a full photo of you
please??
16:01:27:
And photos of your room
16:01:34:
Can you please send me photos of yourself
16:01:42:
Full long photo of you
16:01:52:
Please I am asking nicely for these photos
16:02:09:
Why do you read and ignore me now?
16:02:58:
(emoji)
S
[....] 1: I’m not in the mood for 100 messages and calls
16:24
Well you won’t if you answer me now?
16:24:03:
And not ignore me??
16:25:29:
Are there no photos of you with your shoes a full photo of you please
16:25:37:
And photos of your room
16:26:58:
Can you please send me photos of yourself
16:29:02:
You said you will send me photos of your room and of how you look and
you had a fight with me about it even
16:29:05:
S [....] 1 please
16:29:08:
Don’t fight with me
16:29:11:
(emoji)
16:29:56:
I don’t understand this
16:34:07:
Image sent
16:36:21:
And the bathroom babe? Can you please ask your aunt to take a full
photo of you?? Like with shani or alone please”
17.
The messages continued in the same
fashion for the rest of the weekend. During this weekend alone, the
appellant sent the respondent
approximately 700 WhatsApp messages,
monitored her activity on social network and phoned her constantly.
Although the respondent
asked the appellant to stop the messaging and
telephone calls so that she can spend some time with her family, he
simply ignored
her requests and instead questioned her every
movement.
18.
After the break-up in May 2017 the
barrage of messages and the controlling and manipulative pattern of
the messages did not stop.
The appellant constantly wanted the
respondent to share her location with him, and would get upset if she
did not do so immediately.
He would then accuse her of wanting to
hide things from him. He continued to stalk her on social media
through any means (including
the intervention of third parties). He
made sexually charged and/or inappropriate comments and played on the
respondent’s
emotions. Over and over, both during the course of
the relationship and after the break-up, the respondent would ask the
appellant
to stop messaging and phoning her, but he didn’t.
“
No
”
clearly did not mean no to the appellant. He disregarded the
respondent’s expressed wishes and had no respect of boundaries.
The frequency, extent and magnitude of the messages and telephone
calls paints a picture of a man desperate for attention, yet
scorned
by rejection.
19.
The court
a quo
only took into consideration the
WhatsApp messages post break-up and issued a final protection order
and ordered the appellant not
to stalk, harass, or to engage in
controlling and/or abusive behaviour towards the respondent and not
to communicate with the respondent
directly or indirectly in any way
whatsoever.
20.
Harassment
and controlling or abusive behaviour (
where such conduct
harms, or may cause imminent harm to, the safety, health or wellbeing
of the complainant),
both constitute acts of
domestic violence.
The Act defines
harassment as follows:
“
harassment”
means
engaging in a pattern of
conduct that induces the fear of harm
(emphasis added)
to
a complainant including-
(a)
repeatedly watching, or loitering outside of or near the building or
place where the complainant resides, works, carries on
business,
studies or happens to be;
(b)
repeatedly making telephone calls or inducing another person to make
telephone calls to the complainant, whether or not conversation
ensues;
(c)
repeatedly sending, delivering or causing the delivery of letters,
telegrams, packages, facsimiles, electronic mail or other
objects to
the complainant.
21.
There
is no definition for “harm” in the
Domestic Violence Act,
but
the Harassment Act,
[9]
which
has a much broader term
[10]
for “harassment”, defines harm as “
any
mental
,
psychological,
physical or economic harm
”.
There is no reason why “harm” in the
Domestic Violence
Act should
mean anything different. The
Domestic Violence Act defines
‘emotional, verbal and psychological abuse' as a pattern of
degrading or humiliating conduct towards a complainant, including,
-
(a) repeated insults, ridicule or name calling; (b) repeated threats
to cause emotional pain; or (c) the 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.
This
is not an exhaustive list and it is a court’s task to
objectively view each case on its own merits and determine whether
a
specific conduct complained of, induced any mental, psychological, or
emotional harm to a complainant.
22.
The court
a
quo
held that as the versions of the
appellant and the respondent were materially different, it could only
rely on the objective evidence
in the form of the text messages. The
court
a quo
seemingly held that as there were two versions of the events after 13
September 2017 that a finding could not be made on the papers
as they
stood and consequently did not have regard to the incidents that
occurred after 13 September 2017.
23.
Section
6
of the Act provides for the court to conduct a hearing on the
return date.
In
Omar
v Government of the Republic of
South
Africa and Other
[11]
the
Constitutional Court referred to the procedure that must be followed
by the court in establishing whether a final protection
order should
be granted. At paragraph [38] Van der Westhuizen J stated the
following:
“
The
procedure provided for to obtain a protection order is not uncommon
for situations where a party who feels threatened by the
immediate
conduct of another approaches a court for urgent relief without
giving notice to the respondent. Interim relief is granted
by courts
on a daily basis and respondents are called upon to appear before the
court on a specified return date to show cause
why the interim relief
should not be made final. On the return date the court, after a
proper hearing, decides whether to discharge
an interim order or to
grant final relief. It is also quite common that the return date may
be anticipated by the respondent and
that an interim order can be
varied or set aside. It is not surprising that the legislature has
opted to utilise established and
well-known procedures for dealing
with emergency situations, to adapt these to meet the needs related
to domestic violence and
to codify them in a statute
”
24.
In
Omar
the Constitutional Court made reference to the matter of
S
v Baloyi
[12]
where Sachs J said the following about the interdict process in the
Act:
“
The
ambivalence of the victim and the reluctance of law enforcement
officers to ‘take sides’ in family matters, coupled
with
the intimate and potentially repetitive character of the violence, is
highly relevant to the
creation
of a special process for the issuing of domestic violence interdicts.
The interdict process is intended to be accessible, speedy, simple
and effective. The principal objective of granting an interdict
is
not to solve domestic problems or impose punishments, but to provide
a breathing-space to enable solutions to be found; not
to punish past
misdeeds, but to prevent future misconduct. At its most optimistic,
it seeks preventive rather than retributive
justice, undertaken with
a view ultimately to promoting restorative justice.”
(Emphasis added).
25.
It is clear from the above that the procedure created by the
Legislature in
the Act is
sui generis
.
Section 6
of the Act
therefore provides a wide discretion to the Magistrate to decide what
evidence must be provided. The Magistrate in a
domestic violence
hearing should for that reason take control of the matter and play an
active role, and dictate how the hearing
is to be conducted, even if
both parties are legally represented. Once all the evidentiary matter
has been adduced only then will
the court be a position to determine
the extent of the protection that is needed.
26.
Reporting
on the first year of the Act’s operation, Joanne Fedler
[13]
observes the following:
“
. . . the
strange alchemy of violence within intimacy lends domestic abuse a
unique quality as a legal problem, for there are no
stark realities,
no one-dimensional solutions”.
......... . .
.
[T]he lawyering of domestic abuse [therefore] requires skills
and understanding not commonly required.”
27.
Although
a court dealing with domestic violence should therefore avoid a
formalistic and technical approach to the evidence, it
is still,
required to evaluate the evidence and to make a finding on the
probabilities. The approach to be taken to factual disputes
on
application papers was set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[14]
by Corbett JA to the following effect:
‘
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant's affidavits which have
been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the Court
to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the denial
by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of fact….
If in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination
under Rule
6(5)(g) of the Uniform Rules of Court…and the Court is
satisfied as to the inherent credibility of the applicant's
factual
averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines
whether the
applicant is entitled to the final relief which he seeks….
Moreover, there may be exceptions to this general
rule, as, for
example, where the allegations or denials of the respondent are so
far-fetched or clearly untenable that the Court
is justified in
rejecting them merely on the papers…”
28.
It
is so, however, that a court must always be cautious about deciding
probabilities in the face of conflicts of fact in affidavits.
Affidavits are settled by legal advisers with varying degrees of
experience, skill and diligence and a litigant should not pay
the
price for an adviser's shortcomings. Judgment on the credibility of
the deponent, absent direct and obvious contradictions,
should be
left open.
[15]
It remains then
to establish whether the averments in the answering affidavit, are
such that they are clearly untenable and can
be rejected outright on
the papers or whether they give rise to a genuine factual dispute
relating to the subsequent events.
29.
The
respondent averred that the appellant is responsible for all the
events that transpired after 13 September 2017. She averred
that
after she blocked the appellant on WhatsApp on 20 September 2017, a
fake Instagram account was opened in her name. She averred
that the
appellant was responsible for the opening of the fake account,
because one of the photos posted was taken with the appellant’s
phone. She then posted a message on a Facebook group called “”Get
Up Women” wherein she posted the following:
“
Hi
ladies, my ex created a fake Instagram account pretending to be me.
I’ve tried everything and Instagram will not shut it
down. Any
advice? I’m literally considering hiring someone to hack the
account”.
30.
The appellant responded by sending the
respondent a message on her iphone which stated “
S
[....] 1 you have no physical proof
.”
This is quite a telling message. She did not mention any names in the
Facebook post and at that time the appellant had
been blocked from
the respondent’s social media platforms. It clearly shows the
appellant was still monitoring the respondent’s
posts on
Facebook. The appellant further made mention of two fake Instagram
accounts in his answering affidavit, whilst the respondent
only made
mention of one fake account in her application form. If the appellant
realistically knew nothing of these fake Instagram
accounts, he did
not explain as to how he knew that there were two fake Instagram
accounts.
31.
Furthermore, some of the photos used in
the fake Instagram account were photos originating from the
appellant’s phone and
the posts accompanying the photos were
calculated towards causing emotional harm towards the respondent as
the photos and comments
were in connection with the respondent’s
deceased grandfather with whom she had a very close relationship.
32.
After
the respondent obtained an interim protection order all further
incidents of the same nature stopped. The only ineluctable
inference
and logical conclusion is that he was the person responsible for the
acts.
33.
The
events after 13 September 2017 were clearly designed to cause the
respondent emotional and psychological harm and constitutes
harassment. In this regard, the court
a
quo
was perfectly entitled and should have adopted the often spoken about
robust common approach enunciated in
Soffiantini
v Mould
[16]
wherein the following was held:
“
A
bare denial of applicant's material averments cannot be regarded as
sufficient to defeat applicant's right to secure relief by
motion
proceedings in appropriate cases. Enough must be stated by respondent
to enable the Court to conduct a preliminary examination
. . . and to
ascertain whether the denials are not fictitious intended merely to
delay the hearing.'(or for some other purpose)
'The respondent's
affidavits must at least disclose that there are material issues in
which there is a bona fide dispute of fact
capable of being decided
only after viva voce evidence has been heard. See also the case of
Prinsloo v Shaw,
1938 AD 570.If
by a mere denial in general terms a
respondent can defeat or delay an applicant who comes to Court on
motion, then motion proceedings
are worthless, for a respondent can
always defeat or delay a petitioner by such a device. It is necessary
to make a robust, common-sense
approach to a dispute on motion as
otherwise the effective functioning of the Court can be hamstrung and
circumvented by the most
simple and blatant stratagem. The Court must
not hesitate to decide an issue of fact on affidavit merely because
it may be difficult
to do so. Justice can be defeated or seriously
impeded and delayed by an over-fastidious approach to a dispute
raised in affidavits.”
34.
There are a number of highly improbable
aspects of the appellant’s version which, taken together, would
have justified the
court
a
quo
to reject it as untenable
and hence did not raise a genuine factual dispute. The appellant
provided such an implausible explanation
for the coincidental acts of
domestic violence, namely that an unknown person from the
respondent’s high school days was
secretly harassing the
respondent. The appellant cannot realistically expect to be believed
that an unknown third person would
suddenly appear from nowhere, two
years later, and start launching fake social media accounts, place
false adverts, lay complaints
at the school and police, without any
reason or provocation, coincidentally days after the appellant made a
threat. It is improbable
that anyone else except the appellant could
have been responsible for the subsequent events.
35.
The appellant averred that the court
a quo
erred in
considering the WhatsApp messages and that the communication stopped
long before the respondent approached the court for
a protection
order. The appellant also contended that the messages did not induce
the “
fear of harm”
, because if they did, the
respondent would have applied for a protection order after the threat
was made on 13 September 2017.
36.
The fact
that the respondent did not immediately approach the court for a
protection order after the appellant made the threat on
13 September
2017, is in my view, not a reason to conclude that there was no harm
caused. It was ultimately not this threat alone
that moved the
respondent to apply for a protection order. In
S
v Engelbrecht,
[17]
Satchwell J held that the wide definition of 'domestic violence' in
the DVA is an unequivocal recognition by the Legislature of
the
complexities of domestic violence and the multitude of manifestations
thereof. At paragraph [342] the learned Judge stated:
[342] It must be
accepted that domestic violence, in all manifestations of abuse, is
intended to and may establish a pattern of
coercive control over the
abused woman, such control being exerted both during the instances of
active or passive abuse as well
as the periods that domestic violence
is in abeyance.
[343] There is indeed
compelling justification for focusing, not only on the specific form
which the abuse may have taken over time
and in particular
circumstances, but pertinently on the impact of abuse upon the
psyche, make up and entire world view of an abused
woman.
”
37.
Keeping in mind the complexities of
domestic violence, there can accordingly be many reasons why a
complainant does not seek help
immediately. In a further affidavit,
provided for in section 6(2)(b) of the Act, the respondent explained
that she started dating
the appellant when she was 18 years old and
that he was her first boyfriend. They shared deep feelings for each
other. During the
initial stages of the relationship the appellant
showed signs of controlling and possessive behaviour which the
respondent did
not like and found disturbing. She stated that given
her inexperience and her feelings for him she tolerated the
harassment and
controlling and abusive behaviour. As the relationship
developed his behaviour increased to such an extent that he would
call and
text her throughout the day to see who she was with and what
she was doing.
38.
In the replying affidavit the respondent
also accused the appellant of physically and sexually assaulting her
during the course
of their relationship. She stated that the reason
why she did not make mention of this before was because she was
embarrassed and
ashamed and she only now realized that she did not
speak up under the misguided notion that the appellant was her
boyfriend and
she was his girlfriend and that she had no rights. She
was also fearful that he would do something to himself. She stated
that
after she terminated the relationship, the respondent would
emotionally manipulate her into meeting with him and forcing
conversation.
All this was done to emotionally abuse her and exercise
his sway over her. At times he would threaten to send nude photos of
her
to her mother.
39.
She further stated that she enabled the
“Find Friends” feature on her iphone to enable the
appellant to ascertain her
whereabouts in case of an emergency, but
he abused it. He would track her movements without her knowing it and
when she switched
the feature off he would complain and nag her until
she switched it back on. He would use this feature to deliberately
lock her
phone and would play sounds on it to insist that she speaks
to him. (The respondent annexed emails from iphone as proof.) The
appellant
would then ask questions about her whereabouts to test
whether she was honest with him.
40.
If regard is had to the extracts of the
WhatsApp messages, coupled with the events after 13 September 2017,
it is apparent that
the appellant, over an extended period, committed
numerous acts of domestic violence, including emotionally and
psychologically
abusing the respondent as well as harassing her. If
the text messages and facts are taken as a whole, and taking into
consideration
the great lengths the appellant would go to control and
abuse the respondent, the granting of a final protection order was
warranted.
41.
In the result, the following order is
made:
“
The
appeal is dismissed with costs”.
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree:
M.
TWALA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARANCES
Attorney
for the appellant:
ENS Africa
Counsel
for the appellant:
Adv. A. Saldulker
Attorney
for the respondent:
Biccari Bollo Mariano Inc
Counsel
for the respondent:
Mr. Edi Xavier
Date
of hearing:
11 February 2020
Date
of judgment:
13 February 2020
[1]
WhatsApp is a form of communication by text message.
[2]
Preamble of the
Domestic Violence Act 116 of 1998
.
[3]
Section 1
of the Act defines
'domestic
relationship'
as
a relationship between a complainant and a respondent in any of the
following ways:(a) they are or were married to each other,
including
marriage according to any law, custom or religion;(b) they (whether
they are of the same or of the opposite sex) live
or lived together
in a relationship in the nature of marriage, although they are not,
or were not, married to each other, or
are not able to be married to
each other; (c) they are the parents of a child or are persons who
have or had parental responsibility
for that child (whether or not
at the same time); (d) they are family members related by
consanguinity, affinity or adoption;
(e) they are or were in an
engagement, dating or customary relationship, including an actual or
perceived romantic, intimate
or sexual relationship of any duration;
or (f) they share or recently shared the same residence.
[4]
If you block a contact on WhatsApp they cannot call you or send you
messages.
[5]
iMessages can only be written and sent on an Apple device.
[6]
If you block someone on Instagram or Facebook they cannot see your
posts or photos.
[7]
Facebook is an online social media platform where you can connect
with friends and family.
[8]
Instagram is a way to share photographs and videos on social network
platform.
[9]
Act 17 of 2011.
[10]
It includes actions against persons related to the complainant and
electronic communications eg sms’s and e-mails.
[11]
2006 (2) 289 (CC).
[12]
[1999] ZACC 19
;
2000 (1) SACR 81
(CC) at
[17]
[13]
“Lawyering
Domestic Violence through the
Prevention of Family Violence Act
1993
- An Evaluation After a Year in Operation”
(1995)
112 SALJ 231
at 243.
[14]
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at
634G-H (references omitted).
See
also
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
and
South
Coast Furnishers CC
2012 (3) SA 431 (KZP)
[15]
South
Coast Furnishers CC
at [6]
[16]
1956(4)
SA 150 (E)
at page 154
[17]
2005 (2) SACR 41
(W).