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South Africa: South Gauteng High Court, Johannesburg
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[2020] ZAGPJHC 369
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C[....] v C[....] (A3084/2019) [2020] ZAGPJHC 369 (10 December 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
(1
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE
NO: A3084/2019
In the matter
between:
N[....]
E[....] C[....]
Appellant
and
L[....] J[....] C[....]
Respondent
JU D
G M E N T
Coram:
SENYATSI, J et NOKO, A.J.
Noko
AJ
Introduction
1.
This appeal lies
against the judgment and order of Magistrate H Banks of the
Magistrate’s Court for the district of Johannesburg
North,
Randburg. The Magistrate having dismissed on 2 July 2019 an
application to confirm an interim order granted against the
respondent granted in terms of section the Domestic Violence Act 116
of 1998 (Act).
2.
The interim order
granted in favour of the appellant prohibited the respondent from
committing acts of domestic violence, namely,
physical or verbal or
threats of violence and from entering the complainant’s
residence at [….]. This order was granted
in terms of
section
5
(2) of the
Domestic Violence Act, which
provides that:
“
If
the court is satisfied that there is a
prima
facie
evidence
that-
a.
the respondent is
committing, or has committed 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,
3.
Magistrate Banks was
seized with the matter on the return date being 2 July 2019. At this
hearing the magistrate was to consider
the application in accordance
with sections 6 (2) and (4) of the Act. Section 6 (2) provides that:
“
if
the 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 section 5 (1); and
b.
Consider such further
Affidavits or oral evidence as it may direct, which shall form part
of the recordings.”
4.
Section 6 (4) provides
that-
“
The
court must after a hearing as contemplated in subsection (2), issue a
protection order in the prescribed form if it finds, on
a balance of
probabilities, that the respondent has committed or is committing an
act of domestic violence.”
5.
The magistrate after
considering arguments presented on the return date decided to
discharge the interim order as he was not persuaded
that the evidence
presented warranted the confirmation of the order.
Background
6.
The appellant and the
respondent had an intimate relationship which started in February
2019. They both went to a birthday celebration
of a mutual friend,
D[....] Z[....] (Z[....]) on 10 May 2019 at around 08:00 at a club
called Hogg Heads in Honey Dew. They drove
to another night club,
called Chicago in Randpark Ridge around 22:00 where they continued
with the celebration. They subsequently
went to third night club
called Full Moon at around 23:00 where the celebration continued. It
is in dispute as to the quantity
of the alcohol they both consumed
except that they were drinking at all clubs they went.
7.
They continued with the
birthday celebration and at some stage whilst at the dancing floor
the appellant was spotted kissing a certain
lady, named Y[....].
Y[....] and the appellant proceeded to the ladies room and the
Respondent after some time followed them. Through
his other female
friend he managed to get into the ladies rooms and found the
appellant and Y[....] conducting a sexual act. This
is disputed by
the appellant who stated that Y[....] forced herself onto the
appellant whilst at the dance floor and that she,
the appellant also
resisted the kiss. Further that Y[....] then requested her to
accompany her to the ladies room as she wanted
to throw up. They both
got into the cubicle, Y[....] took off her shirt and bra as she did
not want to vomit on them. It is somewhat
strange that she refused to
kiss her but accompanied her to the ladies room and even entered the
cubicle together.
8.
Being aware that the
respondent did see both appellant and Y[....] they immediately left
the cubicle. Noting that the respondent
was visibly infuriated and
displayed aggressive gestures the appellant conveyed to the
respondent that she will call Uber cab to
take her home. The
respondent objected and insisted that they drive together in his car.
9.
The appellant contended
in her affidavit that she opted to seat in the front seat and the
respondent forced her into the back seat
and slammed her head into
the window of the car and in the process she suffered injuries. The
respondent started throttling her
and hitting her on her face. At one
of the robots the appellant opened the door and attempted to run away
having threatened to
go to the police. The respondent forcibly
dragged her back into the car. The respondent in turn stated that he
was fending off
the punches and slapping from the appellant and in
fact defending himself against the assault by the appellant.
10.
On reaching closer to
home of the appellant Z[....] who was driving them stopped and opened
the back door and both the Respondent
and the appellant fell on to
the ground. In the process appellant sustained injuries of her lips.
The respondent stated further
that the appellant punched him, grabbed
his necklace which was torn. The appellant states that the respondent
was on top of her
and at some stage kicked her on her ribs and this
was only when Z[....] intervened to separate the two. When she tried
running
away the respondent grabbed her belt and it gotten broken and
the respondent followed her and tried to tackle her down.
11.
Z[....] followed them
in the respondent’s car. The appellant then got into the
neighbor’s house, borrowed neighbor’s
phone and called
her mother who opened the gate for her. The respondent followed her
into her house and collected his belongings.
12.
The respondent’s
mother was called by the appellant’s mother the following day
and invited her over to resolve the problem.
The respondent’s
mother proceeded to appellant’s home where they discussed the
events of the previous night. The respondent
was called by his mother
to join them. Both parties and their mothers had discussion and
ultimately the two were requested by their
mothers to go outside and
discuss their issues between themselves.
13.
The appellant proceeded
on 14 May 2019 and applied for a protection order against the
respondent. The delay in reporting was due
to the reluctance pursuant
to the death threats made by the respondent if she reported the case.
The appellant believed such threats
especially as the respondent had
another pending criminal case of assault at the time. The appellant
ultimately summoned up courage
to proceed and applied for the
protection order. The appellant presented photos depicting injuries
sustained on the eventful night
of 10 May 2019 and also WhatsApp
messages exchanged between appellant’s father and the
respondent in terms of which the respondent
apologized for what
transpired on the night of 10 May 2019. An interim order was duly
granted with the return day being on 2 July
2019.
14.
The legal
representatives of both parties made oral representation before the
magistrate court. The appellant’s legal representative
contended that
section 6
(2) of the
Domestic Violence Act enjoins
the
presiding officer to confirm the interim order if an balance of
probabilities the presiding officer is persuaded that there
was
indeed domestic violence committed against the appellant. The
appellant’s legal representative in the process referred
the
court to the photos which were presented by the appellant and argued
that with that evidence it is clear than an act of domestic
violence
was accordingly committed.
15.
The respondent’s
attorney on the other hand argued that this was just an incident of
drunken youngsters misbehaving. Both
parties in the process suffered
some bruises. If there was any possibility of threats the appellant
could not have agreed to be
with the respondent in the absence of any
other party. They both had a cordial discussion and agreed to go
separate ways at the
meeting which took place at the appellant’
home on 11 May 2019. In view of the relationship having terminated,
so argued
the respondent’s Attorney, there was therefore no
need for an order to be confirmed.
16.
The magistrate held
that this was just a fight between the two youngsters who were under
drunken stupor and there is no justifiable
basis to confirm the
interim order. Based on the facts presented before him it did not
appear that there was a need to interdict
the respondent as the
parties are no longer involved and there is no possibility of any
interaction between them. The magistrate
whilst appreciating the
importance of the
Domestic Violence Act stated
that the Family
Violence Court cannot replace the criminal courts and this matter was
more suited to a criminal court. In his conclusion
the magistrate
stated, strangely so, that it is not always the case that the act of
violence should constitute domestic violence
further that in his view
had the respondent seriously intended to inflict injuries such
injuries would have been serious regard
had to the fact that the
respondent was a big man and the appellant was tiny. In his
understanding the question was whether “a
person need
protection and in this instance he does not feel that the appellant
need protection from the respondent.
Before this
court
17.
This court dispensed
with the requirement for oral arguments in terms of the directives of
the court. The appellant’s heads
of argument referred to the
injuries which were inflicted and specifically the following, that
the respondent slammed the appellant’s
head, appellant
attempted to escape and was thrown back into the car and the
respondent climbed on top of her and straggled her,
her shirt was
torn and she was also kicked on her ribs. The photos were part of the
record and depicted the appellant’s injuries.
The WhatsApp
messages also demonstrated that the respondent did apologize to the
appellant’s father. The appellant’s
representative
further contended in the papers before the court that the magistrate
erred and misdirected himself in the conclusion
that the test is to
determine possibility of future violence whereas the section of the
Act clearly requires of the presiding officer
to confirm the interim
order in instances where a finding on balance of probabilities showed
that an act of violence was committed.
Further that the reasoning
that it was a once off drunken incident and the injuries would have
been serious had the respondent
really wanted to assault the
appellant should be frowned upon as flying in the face of the ethos
of the Act.
18.
The respondent’s
counsel contended in the heads of argument that it is questionable
why the appellant needs a final order
as there were no previous
repeated history of abuse and further that the parties’
intimate relationship has ended. He further
submitted that this
incident was preceded by a consumption of a copious amounts of
alcohol. He agreed with the magistrate that
though there were bruises
and the injuries would have been serious if the appellant was intend
at injuring her. If the appellant
was severely abused she could have
laid a criminal charge. Further that the evidence presented by the
appellant does not suggest
that there is a continual threat or even
reasonable apprehension of harm.
19.
Section 6 (4) of the
Act is so glaring that the court should consider whether on a balance
of probabilities that act of domestic
violence as committed. All
parties including the appellant are at
ad
idem
that the
appellant sustained injuries/bruises except that the presiding
officer and respondent harbours the belief that the injuries
should
have been serious to warrant confirmation of the interim order
alternatively that the parties were just drunk. Further that
there
are no chances of future violence since the parties are no longer in
a relationship. These pointers are irrelevant for the
purpose of what
is envisaged in section 6 (4) of the Act. The question should be
whether was there an act of violence visited on
to the appellant? If
the answer is in the affirmative the order must be confirmed. Being
in a drunken stupor cannot be invoked
as a refuge to justify violence
by one party to the other and simultaneously less serious injuries
will not assist the respondent
to run away with the proverbial
murder. It is palpable from the records that the respondent was
angered by the appellant who appears
to have been cheating with
Y[....]. This is what infuriated the respondent which preceded the
acrimonious fight with the appellant.
It is also obviously incredible
that the appellant who claims to have resisted the kissing advance
from Y[....] but nevertheless
accompanied her into the ladies room
and further proceeded into the cubicle with her. This does not
however give the respondent
or any partner the right to inflict
injuries to the appellant or any other person. Being angry or
disappointed cannot be used as
an excuse for being violent.
20.
The
conclusion by the magistrate that the appellant should have been
seriously injuries to deserve of the court protection demonstrate
an
utter failure to appreciate the ethos underlying the
raison
d’tre
of the Act which has as its prelude being to “To afford the
victim of domestic violence the maximum protection from domestic
abuse that the law can provide”. This Act, as was reaffirmed by
Molahlehi J in
KS
v AM
[1]
that it was promulgated by the parliament as enjoined to ensure that
guaranteed right enshrined in section 12
[2]
of the Constitution is protected.
21.
The judgment by the
magistrate present an epitome of a failure to acknowledge the scourge
of violence visited to women and it also
engender the patriarchal
tendencies which practice is inimical to the democratic principles.
22.
It
is acknowledged that ordinarily the appeal court should adopt a slow
approach to interfere with the decision of the court a quo,
except in
instances where such a discretion was exercised capriciously. The
constitutional court stated in
Trencom
Construction Pty Ltd v Industrial Development Corporation of South
Africa Limited and Another
[3]
that interference must be preceded by court’s conclusion that
it was not exercised “
judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or it had reached a decision which
in the result could
not reasonably have been made by a court properly directing itself to
all the relevant facts and principles
.”
The magistrate was clearly misdirected in believing that the
protection order is available to only those who still have
an
intimate relationship or those who are seriously injured (and not
mere bruises) or those who were not drunk at the time when
violated.
The judgment is left to stand will contribute to the abuse of women
and encourage drunken big man to assault without
leaving visible
injuries or just inflict minor injuries. In the circumstances
interference is warranted and the judgment should
be set aside.
Costs
23.
There appears no reason
why the costs should not follow the cause.
24.
I therefore make the
following order:
a.
That the appeal is
upheld;
b.
The magistrate decision
is replaced with the following:
The respondent is
ordered not to commit acts of domestic violence namely, physical or
verbal or threats of violence and ordered
not to enter the
appellant’s residence at [….]”
c.
The respondent is
ordered to pay the costs including costs of appeal.
NOKO MV
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
SENYATSI M.L
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES
FOR THE
APPELLANT :
ADV BD STEVENS
INSTRUCTED BY
:
HESSELINK KONIG
INCORPORATED
FOR THE RESPONDENT
: AD G
OLWAGEN-MEYER
INSTRUCTED BY
:
RIAAN LOUW ATTORNEYS
DATE OF
HEARING :
14
APRIL 2020
DATE
OF JUDGMENT
:
10 DECEMBER 2020
[1]
A3032/2016,
at para 29,
[2]
Section
9 provides for the equality, full right to quality protection and
the benefit of the law.
Section
12 provides everyone with the right to freedom and security of the
person including being free from all forms of violence
from either
public or private
[3]
2015
(5) SA 245
CC