About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 189
|
|
L.M.H v W.A.H (A20/2021) [2023] ZAFSHC 189 (19 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
A20/2021
In
the matter between:
L[…] M[…]
H[…]
Plaintiff
and
W[…] A[…]
H[…]
Respondent
CORAM:
MHLAMBI J
et
M E MAHLANGU, AJ
JUDGMENT
BY:
M
E MAHLANGU, AJ
HEARD
ON:
8 MAY 2023
DELIVERED
ON:
19
MAY 2023
INTRODUCTION
[1]
This is an appeal against the decision of Magistrate van der
Westhuizen stationed at Vrede
Magistrate Court (the court
a quo
),
delivered on 12 November 2020. The appellant applied for a protection
order in terms of the Domestic Violence Act 116 0f 1998
(the Domestic
Violence Act) against the respondent which was granted on 29 May
2020. On 12 November 2020, the court
a quo
dismissed the
application of the final protection order with costs.
[2]
On 22 November 2021, the appellant brought a condonation application
for the late prosecution
of the appeal which sought that the late
prosecution of the appeal be condoned and that the time to prosecute
the appeal be extended.
The condonation application was granted at
the start of the hearing of the appeal.
[3]
Pursuant to the appeal lodged by the appellant, the respondent raised
the following issues:
3.1
That the appellant has not provided the security for costs in terms
of the Magistrate’s Court Rule 51(4)
; and
3.2
That the appellant has not provided the special power of attorney in
terms of Rule 7(2) of the High Court
Rules.
[4]
Rule 51(4) of the Magistrate’s Court provides that:
“
(4)
An appeal shall be noted by the delivery of notice, and, unless the
court of appeal shall otherwise
order, by giving security for the
respondent’s costs of appeal to the amount of R1000; Provided
that no security shall be
required from the State or, unless the
court of appeal otherwise orders, from a person to whom legal aid is
rendered by a statutorily
established legal aid board
.”
[5]
Rule 7(2) of the Uniform Rules of Court provides that:
“
(2)
The registrar shall not set down any appeal at the instance of an
attorney unless such attorney has
filled with the registrar a power
of attorney authorising him to appeal and such power of
attorney shall be filed together
with the application for a date of
hearing
.”
[6]
Mr Botha submitted on behalf of the respondent that the security for
costs and the power
of attorney were not provided by the appellant
and therefore the appeal was not properly enrolled and therefore
should not be heard.
He further submitted that the issue of the
failure to provide the security for costs and the power of attorney
was raised 10 months
prior to this hearing and the appellant did not
comply to date. Mr Botha submitted that the application to appeal
should be dismissed
with costs.
[7]
Ms Nortje on behalf of the appellant submitted that, according to
Rule 7(2), the register
could not have enrolled the matter if the
power of attorney was not filed. She further submitted that, the
application for appeal
was ready to be heard.
[8]
Consequently, after hearing the submissions made by both parties
representatives, the court
exercised its discretion and ordered that,
the appeal application should proceed.
Appeal
[9]
The appellant brought the appeal on the grounds that the court
a
quo
erred in upholding the points
in limine
raised by the
respondent at the hearing of the final interdict.
[10]
Th following were the points
in limine
raised during the
application of the final protection order:
10.1
That the appellant’s application does not comply with the
Domestic Violence act;
10.2
That the applicant’s affidavit is not properly signed;
10.3
That the confirmatory affidavit of Mr Booysen is not signed and it is
not also commissioned by the Commissioner of Oaths;
[11]
The court
a quo
upheld the points
in limine
in that
although there were averments of domestic violence mentioned in the
applicant’s sworn affidavit, there was no evidence
that was
placed before the court corroborating such evidence.
[12]
The main purpose for the application of the protection order was to
allow the appellant to relocate to Pretoria.
The appellant had
relocated, the court
a quo
was correct in dismissing the final
protection order as it would not serve any purpose.
[13]
Section 6(4)
of the
Domestic Violence Act 116 of 1998
provides that:
“
(4)
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
.”
[14]
In the matter of
S v Engelbrecht
[2005] JOL 1337
(W) Satchwell
J
at paragraph 146 defined the domestic violence a pattern of
coercive control characterized by the use of physical, sexual
and psychological abusive behaviour. Control is an element for the
definition of domestic violence contained in the
Domestic Violence
Act. The
victim must be able to highlight the continuous abusive
behaviour of the abuser. In this matter, the appellant could not show
to
the court the abusive patterns that the respondent had done to
her. I am therefore of the view that, the court’s
a quo
dismissal of the final interdict was justified.
[15]
The appellant also appealed against the cost orders granted by the
court
a quo,
the reason being that the appellant acted
frivolously, vexatiously and unreasonably in bringing the application
for the final interdict.
The court
a quo
stated that the main
purpose of the interim protection order was to enable the appellant
to relocate to Pretoria. The other conditions
of the interim
protection order, namely, that the respondent should not enter the
appellant’s residence in Pretoria, that
the respondent should
not prevent the appellant from entering her place of employment at
Spar, Vrede and that the respondent should
not contact the appellant,
could have been discussed by the parties and a decision to be made
either to alter the conditions of
the interim protection order or to
set them aside. I am in agreement with the court
a quo,
the
main purpose of the interim protection order has been fulfilled. The
appellant has relocated to Pretoria. The appellant should
not set the
matter down for the final interdict.
[17]
It is trite that the costs follow the results. The application for
final protection order was dismissed
and therefore had to be in
favour of the respondent. The court a quo rightfully granted the
costs against the appellant.
[18]
Relating to the costs granted against the appellant on 18 July 2022,
Mr Botha submitted he did not
ask for them. They were
meru meto
granted by the court as the appeal was not ready to be heard. I am
therefore of the view that I should not interfere with the cost
order
granted against plaintiff on 18 July 2023.
Conclusion
[19]
In light of the above, the appeal is dismissed with costs.
__________________
MAHLANGU,
AJ
I
concur, and it is so ordered
__________________
MHLAMBI,
J
Counsel
for Appellant:
Ms N Nortje
Attorneys
for Appellant:
ML
Schoeman Attorneys
c/o Webbers Attorneys
96 Charles Street
Bloemfontein
Ref:
M Koller/MLS1/0001
Counsel
for the Respondent:
Mr A.A Botha
Attorneys
for the Respondent: Van Heerden &
Krugel Attorneys
c/o Kramer Weihmann
Attorneys
24 Barnes Street
Westdene
Bloemfontein
Tel: (051) 411 000
Ref:
JA Kramer/ZDT/jdt/F07722