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 DIVISION, JOHANNESBURG
Appeal Case Number: A3132/2021
A Quo Case Number: 344/2021
In the matter between:
In the matter between
J[...] D[...] D[…] G[...] APPELLANT
and
A[...] M[...] DE G[...] N[...] RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by e- mail and to saflii . The date and time for hand down is
deemed to be 10h00 on 26 January 2024.
Civil procedure – final protection order – Domestic Violence Act 116 of 1998 – Scope
of protection order – Definition of domestic relationship
JUDGMENT
MUDAU, J (NEL AJ concurring):
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES:NO
(3) REVISED: YES
26 January 2024
2
[1] This appeal is against the finding and order of the magistrate (Randburg), in
which the magistrate issued a final protection order in favour of the respondent in
terms of section 6 of the Domestic Violence Act, 116 of 1998 (the Act ). The
respondent brought an application for a protection order against the appellant
pursuant to section 4(1) of the Act.
[2] The grounds of appeal are that the magistrate erred in the following respects.
First, by erroneously finding that the respondent and the appellant are in a "domestic
relationship" as defined in the Act. Secondly, by erroneously finding that the
appellant's alleged denial of the respondent's version of events bears no evidential
weight and falls to be rejected.
[4] T he respondent's application for a protection order was predicated on the
following factual matrix. The appellant (a 59 year old male at the time) and the
respondent (a 56 year old female at the time) are siblings. Their parents were still
alive at the time of the launch of these proceedings.
[5] The respondent alleged in her founding affidavit that t he appellant made
numerous threats towards her and her adult daughter. The threats have included
serious threats of having her murdered and enlisting the assistance of third parties to
intimidate her daughter through phone calls, which the appellant admitted. The
respondent’s daughter, J[...]’s confirmatory affidavit in that regard was attached.
[6] By way of background, the respondent alleged that the appellant sexually
molested her by touching her inappropriately in her youth when she was
approximately 12 years old when he was approximately 15 years old. She alleged
that he would continuously spy on her and would watch her bath through a high
window looking into their bathroom. The respondent asserted that the pattern and
history of abuse has been perpetuated into adulthood with the respondent describing
an incident of further assault in 2006 in the presence of her then two minor children.
[7] The respondent also described instances of threats and intimidation in 2019.
The respondent detailed further threats of violence during the period between
December 2019 to August 2020. She asserted that, during or about December 2019,
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the appellant, herself and another brother, Alberto Eusebio de G[...] ('Albert') met to
discuss their parents’ well -being and care. In Albert's presence, the appellant stated
that he had ordered a hit on her life.
[8] The appellant went on to tell them that his instructions were to have her killed
in her car in the absence of her children. The appellant requested in August 2020
that she attend to have coffee with him at Lifestyle Garden Centre to discuss the
monies due to her late husband's estate from the deli business owned in equal
shares by her husband and the appellant. Upon doing so, the appellant again
informed her that he had taken a "hit" on her life, which she understood to mean
murder because she was trying to take his business away from him.
[8] The respondent described another incident, which occurred around 14h15 at
their parents’ house on the 13 October 2020. The three siblings met there to discuss
once again the well -being, care and various matters relating to their elderly parents.
On that occasion, the appellant asked about their parents’ will to which she and
Albert confirmed that until the time of their death, the will would set out their parents’
wishes.
[9] The appellant became agitated by her various responses and started
screaming and shouting at her. The appellant stood up and started walking out of the
door and out of the house. She followed the appellant asking him to calm down and
to sit down so that they could finish the discussion regarding their parents and
because they still needed to discuss the monies due to her husband’s estate from
their business. Upon getting out of the car, the appellant pushed his face right into
her face telling her he was going to “fuck” her up and would have her killed. She
attached to her founding affidavit a letter that she alleged was written by her brother
Albert, who at the time was visiting his children in Cape Town in which the latter
confirmed the alleged threats to the respondent’s life on that occasion.
[10] According to the respondent, during 2020, the appellant informed her that he
caused reports to be created, after her late husband's death, on her whereabouts
and movements and that he had a drone outside their garden watching her and the
children.The value of her late husband's membership in the business was to be paid
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out to her late husband's estate which the appellant refused to do. This, however, is
a subject of separate pending civil litigation and requires no further attention in these
proceedings.
[11] In opposing the application, the appellant pointed out that he had no intention
of dealing with the respondent’s claims on merit but denied any wrongdoing. The
appellant contends that there exists no locus standi on the construction of a family
relationship as defined in the Act.
[12] In section 1 of the Act, a "complainant" is defined inter alia as "... any person
who is or has been in a domestic relationship with the respondent ...". Domestic
relationship is defined in terms of section 1 of the Act as follows —
“domestic relationship” means 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 (my
emphasis);
(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 are persons in a close relationship that share or shared the same residence.”
[13] Relying on Daffy v Daffy 1, the appellant contended that the respondent had
misconstrued her remedy and that the dispute between them was really of a
commercial nature and not a matter of domestic violence that ought to be dealt with
under the Act. Briefly stated, the relevant facts in Daffy were that the respondent
suspected the appellant of having committed various financial irregularities in the
1 2013 1 SACR 42 (SCA).
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conduct of the company’s affairs and having abused his position by taking
unnecessary trips abroad at company expense. This led to friction between them
and there is evidence of the m having argued at times, during which the appellant
raised his voice. On occasions, the appellant threatened to assault and financially
ruin the respondent, using crude and vulgar language.
[14] The SCA held at para 8 in Daffy held that —
“Thus t he ordinary connotation of a domestic relationship involves persons sharing a
common household. Clearly the legislature envisaged the definition to bear a wider
meaning than that for purposes of the Act, but I do not believe that it intended that a
mere blood relationship, even if close, would in itself be sufficient. After all, to adhere
to a definition ‘regardless of subject -matter and context might work the gravest
injustice by including cases which were not intended to be included’. In the context of
the further provisions of the definition, some association more than mere
consanguinity is clearly required for there to be a domestic relationship”.2
[15] The SCA further held that —
“…bearing in mind their respective ages and the fact that they have not shared a
common household for many years, it would be absurd to conclude that the mere
fact that the parties are siblings means that they shared a domestic relationship as
envisaged by the Act.”3
[16] However, there is no denying, as the SCA pointed out in Tsobo v Tsobo 4 ,
that the primary objective of the Act is to provide victims of domestic violence with an
effective, uncomplicated, and swift legal remedy. It achieves this by providing for a
simplified procedure for protection order applications, endowing the courts with a
wide discretion – both in respect of the manner of the hearing and the form of relief –
and placing upon the courts and law enforcement functionaries’ extensive obligations
to assist and protect victims of domestic violence. While the Act is gender -neutral,
the undisputed reality remains that domestic violence is "systemic, pervasive and
overwhelmingly gender-specific" and "reflects and reinforces patriarchal domination
and does so in a particularly brutal form".
2 Id para 8.
3 Id para 9.
4 2022 (2) SACR 233 (SCA)
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[17] It is therefore still the most vulnerable members of society, namely women
and children, who are invariably the victims of domestic violence and thus the
beneficiaries of the protection accorded by the Act. However, as the facts of this
case so vividly demonstrate, the provisions of the very legal instrument which are
designed to protect those vulnerable sectors of society from domestic violence, are
often abused as a tool of harassment and to reinforce patriarchal domination5.
[18] The distinction between this matter and Daffy ov er and above the commercial
interest that the appellant had in the Deli business run by the appellant, the siblings
had meetings and continue to meet about their parents' wellbeing. In the appellant’s
words, since 13 October 2020 the respondent and the appellant had in- person
meetings and conversations on various occasions without any incident.
[19] Significantly, in s ection 1 of the Act, ‘domestic violence’ is defined as
meaning —
“(a) physical abuse;
(b) …
(c) emotional, verbal and psychological abuse;
(d) …
(e) intimidation;
(f) harassment;
(g) stalking;
(h) …
(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.”
[20] The appellant failed to deal with the various detailed allegations of
impermissible conduct against him by the respondent, relying instead on
5 Ibid para 1.
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a bare denial thereof. That was insufficient to stave off the relief sought by the
appellant consistent with the Plascon- Evans approach6. In my view, the conduct
complained of and which was not materially unchallenged, fall within the definition of
verbal, emotional, or psychological abuse, harassment and stalking as defined in
terms of subsections 1(vii)(c) and (f) of the Act. The dispatch of a drone over the
respondent’s property would be a prime example of stalking.
[21] The principal objective of granting an interdict (family or domestic violence) as
the Constitutional Court pointed out , “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”.7
[22] For these reasons, the magistrate correctly issued the final protection order.
The appeal to this court must therefore fail, and there is no reason for the costs not
to follow the event.
[23] I therefore make the following order—
a. The appeal is dismissed, with costs.
TP MUDAU
JUDGE OF THE HIGH COURT
JOHANNESBURG
I AGREE
NEL AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
6 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
7 S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC) para 17
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For the Appellant: Adv. G J A Cross Instructed by Gordan Holtmann
Attorneys
For the Respondent: Adv. L C M Morland Instructed by Warrener De Agrela &
Associates Inc
Date of Hearing: 20 April 2023
Date of Judgment: 26 January 2024