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[2012] ZASCA 149
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Daffy v Daffy (659/2011) [2012] ZASCA 149; [2012] 4 All SA 607 (SCA); 2013 (1) SACR 42 (SCA) (28 September 2012)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case No: 659/2011
In
the matter between:
CHRISTOPHER REDDEN
DAFFY
..................................................................
Appellant
and
STEPHEN
REDDEN DAFFY
........................................................................
Respondent
Neutral
citation:
Daffy v Daffy
(659/2011)
[2012] ZASCA 149
(28
September 2012)
Coram:
Lewis, Van
Heerden, Cachalia and Leach JJA and Southwood AJA
Heard:
13
September 2012
Delivered:
28
September 2012
Summary: Domestic
violence ─ definition of domestic relationship under the
Domestic Violence Act 116 of 1998
─ whether two middle-aged
brothers who did not share a common household shared a domestic
relationship ─ whether the
conduct of one brother constituted
domestic violence as envisaged by the Act.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
South Gauteng High Court, Johannesburg (Saldulker and Makume JJ
sitting as court of appeal):
The appeal succeeds with
costs. The order of the high court is set aside and replaced with the
following:
‘
The
appeal is dismissed, with costs.’
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH
JA (LEWIS, VAN HEERDEN AND CACHALIA JJA AND SOUTHWOOD AJA
CONCURRING).
[1] The Daffy brothers,
Christopher (the appellant) and Stephen (the respondent), are
businessmen of Johannesburg. On 4 December
2009, without giving
notice to the appellant, the respondent successfully applied to the
Randburg Magistrates’ Court under
the
Domestic Violence Act 116
of 1998
for an interim protection order against the appellant. In due
course the appellant opposed the confirmation of the interim order.
Both sides proceeded to file affidavits and, after several
postponements, the matter eventually came to trial. After hearing the
evidence of the respondent and his two witnesses, the magistrate
decided that the respondent had failed to make out a case for
the
relief sought and set aside the interim order. The respondent
proceeded to appeal to the South Gauteng High Court which, on
27 May
2011, upheld the appeal, set aside the order of the magistrate and
confirmed the protection order. With leave of the high
court, the
appellant appeals to this court, seeking to have the protection order
set aside once more.
[2] Before dealing
further with the matter, it is unfortunately necessary to record that
both parties launched a range of personal
attacks upon each other
and, in so doing, raised many issues entirely irrelevant to their
dispute. For example, not only did the
appellant allege that the
respondent had assaulted their mother and threatened her with a
knife, an incident which had occurred
several years previously and
had no bearing on the present issues, but he (or more properly his
legal representatives) also sought
to burden the papers with the
documents filed in two pending high court applications between the
parties which, so it was alleged,
were to be regarded as
‘incorporated by reference’ into his papers. The issues
raised in those applications were similarly
wholly irrelevant to the
issue of a protection order. (Fortunately, common sense finally
prevailed and they were excluded from
the record in this court.) In
addition, the record is replete with extravagant and far-fetched
allegations of misconduct, as well
as hearsay allegations and
assertions which were either speculation or shown to be untrue. I
appreciate that emotions often become
inflamed in the course of
litigation between relatives, but legal practitioners should strive
to ensure that objectivity prevails.This
does not appear to have
occurred during the proceedings in the court of first instance (I
must immediately record that counsel
for the appellant and leading
counsel for the respondent who appeared in the appeal were not
involved at that stage).
[3] Turning to the facts,
both parties are middle-aged businessmen; the appellant who is now 40
years of age being some five years
younger than the respondent. They
do not share a common household; the appellant lives in Parktown
North while the respondent's
home is in Riverclub. At the heart of
the unpleasantness that arose between them is their interest in a
company known as Core Mobility
(Pty) Ltd. Although the respondent
describes himself as being Core Mobility’s sole director and
shareholder, the appellant
contends that he holds 50% of the
company’s shares. The appellant in fact launched high court
proceedings for an order declaring
that to be the case. (Those
proceedings were still pending at the time of the trial, its papers
having been ‘incorporated
by reference’ into those filed
in the magistrate’s court). The respondent relied upon those
proceedings, and the fact
that the papers therein were served upon
him at his work, to found an allegation that there was a course of
conduct by the appellant
which, together with certain threats and
other conduct relevant to the company and their business
relationship, justified a protection
order being granted in his
favour.
[4] Whatever the true
state of the company’s affairs may be, the appellant was
employed by Core Mobility for about 10 years
until his employment was
terminated after a disciplinary enquiry in November 2009. This was
the culmination of a period during
which personal relations between
the two brothers had soured. It appears that the respondent suspected
the appellant of having
committed various financial irregularities in
the 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 their having
argued at
times, during the course of which the appellant raised his
voice. On occasions, the appellant threatened to assault and
financially
ruin the respondent, using crude and vulgar language.
Eventually, on advice from his attorney, the respondent arranged for
the
disciplinary enquiry already mentioned to be held. The appellant
refused to attend and was dismissed.
[5] In the light of this
background, the appellant contended that the respondent had
misconstrued his 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.
It
is to this issue that I first turn.
[6]
Section 4
of the Act
provides for a protection order to be applied for by a ‘complainant’
– defined in
s 1
as ‘. . . any person who is or has been
in a domestic relationship with the respondent and who is or has been
subjected or
allegedly subjected to an act of domestic violence,
including any child in the care of the complainant’. In turn a
‘domestic
relationship’ is defined as meaning:
‘
. . . 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.’
[7] The respondent relied
upon sub-paragraph
(d)
of this definition, and the common
cause fact that he and the appellant are brothers, to allege that
there was a ‘domestic
relationship’ between them which
qualified him as a ‘complainant’ as envisaged by the Act.
However the sub-paragraph
could hardly have been more broadly
formulated. No degree of relationship, consanguineous or otherwise,
is mentioned: and the concept
of ‘family’ is in itself
extremely wide. Could the legislature have envisaged that distant
cousins having nothing in
common save for an ancient mutual ancestor,
are for that reason alone to be regarded as having a domestic
relationship? That question
must surely be answered in the negative.
[8] So how is the
definition to be interpreted? It is often necessary in interpreting
legislation to look at the underlying purpose
of the statutory
provisions in question to avoid a purely literal interpretation
giving rise to absurdity. In this regard, as appears
from the
judgment of the Constitutional Court in
S
v Baloyi (Minister of Justice & another intervening)
[1999] ZACC 19
;
2000
(2) SA 425
(CC) paras 11-12, the concept of domestic violence is
commonly understood as being violence within the confines of the
family unit,
often hidden from view by reason of the helplessness of
the victim and the position of power of the abuser. Significantly
also,
the
adjective ‘domestic’ has as its common meaning
‘pertaining to the home, house, or household: pertaining to
one's home or family affairs’
1
while the word ‘family’
has as one of its general connotations ‘the body of persons who
live in one house or under
one head, including parents, children,
servants etc’.
2
Thus the 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,
3
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’.
4
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.
[9] The definition is
poorly framed and probably incapable of bearing a precise meaning.
Although for present purposes it is unnecessary
to attempt to
determine precisely what would be required for such a relationship,
the respondent relied solely on the fact that
he and the appellant
are brothers. As indicated above, that in itself is insufficient. In
my view, 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. For
this reason alone the
respondent failed to show that he was a
‘complainant’ entitled to the protection of the Act.
[10] That is not the only
reason why the respondent must fail. He was also obliged to show that
the appellant had committed,
or
would commit, an act of domestic violence against him. In
s 1
of the
act, ‘domestic violence’ is defined as meaning:
‘
(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.
’
(My emphasis.)
[11] It is not necessary
to deal with the facts in any detail. The respondent had to show that
his ‘safety, health or well-being’
were threatened by the
appellant’s conduct. The most relevant event (I hesitate to use
that description) occurred after the
appellant and the respondent had
visited their brother who was in jail serving a period of
imprisonment.
They then went to the respondent's
home where, during an argument and at a time when he was heavily
intoxicated, the appellant threw
a bottle of vodka at the respondent.
Fortunately it missed and no harm was done. This was the only act of
attempted violence mentioned
by the respondent, and it was an
incident that occurred almost a year before the respondent instituted
the domestic violence proceedings.
Despite the
appellant having threatened the respondent in crude terms as already
mentioned, and apart from this isolated incident,
he
never actually attempted to do the respondent any physical harm, and
his crude utterances were clearly nothing more than empty
threats
made in anger.
There was therefore no reason to
think that the appellant would resort to violence against the
respondent.
[12] As already
mentioned, the respondent made some play of the appellant having
brought high court proceedings against him in relation
to an alleged
interest in Core Mobility to which he alleged the appellant had no
claim. That may or may not be so, but that was
an issue for the court
hearing that dispute to decide. Certainly there was no room for the
magistrate to find either that the institution
of those proceedings,
or the fact that service of the papers was effected at the company’s
offices, could constitute ‘economic
abuse’ as envisaged
in the context of domestic violence envisaged by the Act.
[13] The respondent also
alleged the appellant had somehow hacked into the company's computer
system, copied company information
and had been reading all his
emails. All of this was hearsay and speculation, and was alleged
without any factual foundation being
laid in evidence. But even if
the appellant was guilty of conduct of that nature, while it may have
been industrial espionage,
I do not see how it can in any way be
regarded as domestic violence. What the respondent had heard about
the appellant’s
alleged conduct in that regard certainly
annoyed him, but it was not suggested that it had caused harm to his
safety, health or
well-being.
[14] The respondent also
averred that he had been harassed and intimidated by the appellant
stalking him. In this regard he alleged
that he had seen the
appellant driving his wife's car along a street in the vicinity of
Core Mobility’s premises. This can
hardly be regarded as
stalking. The respondent also referred to another occasion when the
appellant had been parked in his vehicle
outside the company’s
office. Under cross-examination he conceded that he could not say
whether the latter vehicle had indeed
been that of the appellant, nor
whether it was the appellant who had been seated in it. This is
illustrative of the groundless
nature of the allegations the
respondent was prone to make and speaks of possible paranoia on his
part.
[15] Despite the only
relevant incident of violence having been that involving the throwing
of a bottle more than a year before,
the respondent testified that he
was scared of the appellant and that ‘maybe he is going to get
me arrested or something’.
He also said that he had upgraded
the security systems both at his home and at his work to ensure that
appellant did not gain unauthorised
access. However none of the
evidence he gave in regard to the appellant’s actions
objectively justified him fearing for his
life, as he alleged was the
case, nor would they have necessitated any additional security
arrangements being made.
[16] It is not necessary
to discuss respondent’s allegations against the appellant in
any further detail. It was common cause
that after the respondent had
been dismissed, the appellant had not seen him for several months
until the trial commenced. During
that period the appellant had done
nothing that either harmed, or threatened to harm, the respondent in
any way. Although the respondent
may justifiably have been annoyed or
irritated by the appellant’s conduct, certainly none of the
appellant’s past actions,
either alone or cumulatively,
justified a finding that the appellant had harmed or was threatening
to harm the respondent’s
health, safety or well-being, and it
is surprising, to say the least, that the high court appears to have
concluded otherwise.
[17] For these reasons,
the trial court correctly discharged the interim protection order and
the high court erred in allowing the
appeal. The appeal to this court
must therefore succeed, and there is no reason for the costs not to
follow the event.
[18] The appeal succeeds
with costs. The order of the high court is set aside and replaced
with the following:
‘
The
appeal is dismissed, with costs.’
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: D J
Joubert
Instructed by:
Gerhard Botha Attorneys,
Johannesburg
Symington & De Kok,
Bloemfontein
For Respondent: A A
Crutchfield (with her J C Viljoen)
Instructed by:
Kevin Hyde Attorneys,
Randburg,
Lovius Block,
Bloemfontein
1
Shorter
Oxford English Dictionary on historical principles (6ed).
2
Oxford
English Dictionary (2ed).
3
Cf
the Preamble to the Act.
4
Per
De Villiers ACJ in
Town Council of Springs v Moosa & another
1929 AD 401
at 417.