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[2023] ZAKZPHC 48
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A.M v S.D (AR 220/2022) [2023] ZAKZPHC 48; 2023 (2) SACR 296 (KZP) (12 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
FLYNOTES:
FAMILY – Protection order – Harassment –
Repetitive element which makes it oppressive and unreasonable
–
Overwhelmingly oppressive single act – Four incidents
complained of – Only one actionable in terms of
the Act and
not overwhelming in its oppressiveness – Appeal against
granting of protection order by magistrate’s
court upheld –
Protection from Harassment Act 17 of 2011, s 9(4).
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR 220/2022
In
the matter between:
A[….]
M[….]
APPELLANT
and
S[….]
D[….]
RESPONDENT
Coram:
Mossop J (Madondo DJP concurring)
Heard:
21 April 2023
Delivered:
12 May 2023
ORDER
On
appeal from
: The Magistrates’ Court, Pietermaritzburg
(sitting as court of first instance):
1.
The appeal is upheld.
2.
The order granted on 30 March 2022 is set aside and replaced
with the
following order:
'The
application for a protection order in terms of the provisions of s
9(4) of the Protection from Harassment Act 17 of 2011 is
dismissed.'
3.
There shall be no order as to costs either in the court a quo
or on
appeal.
JUDGMENT
Mossop
J (Madondo DJP concurring):
[1]
On 30 March 2022, the respondent obtained a protection order from the
Pietermaritzburg Magistrates’ Court against the appellant in
terms of section 9(4) of the Protection from Harassment Act 17
of
2011 (the Act).
[2]
The terms of the protection order that was sought before the court a
quo
reads as follows:
‘
The
court is requested to –
7.1
prohibit the respondent from –
*7.1.1
engaging in or attempting to engage in harassment of the complainant;
*7.1.2
engaging in or attempting to engage in harassment of the related
persons whose particulars are provided in paragraph
3, above;
*7.1.2
[sic] enlisting the help of another
person to engage in harassment of the *complainant/*related
person;
*7.1.3
committing any of the following act/s:
(a)
engaging in or attempting communication of the complainant
verbally, physically, visually, or any other way (e.g. digitally,
etc.)
(b)
approaching the complainant within one kilometre of the
complainant.’
In
paragraph 3 of the application, dealing with related persons, appear
two names, apparently being the names of a cousin of the
complainant
and the complainant’s half-brother.
[3]
The protection order sought appears on a pre-printed document with
spaces
for relevant information to be inserted. The relief claimed in
sub-paragraphs 7.1.3 (a) and (b) is inserted in manuscript but all
the other relief claimed is typed and forms part of the pre-printed
document. It will be observed that each pre-printed potential
order
has an asterisk before it. There is no explanation for the appearance
of the asterisk, but ordinarily it would mean that
if something is
not applicable, it should be deleted. None of the words marked with
an asterisk have been deleted and so it must
be assumed that all the
relief identified was granted.
[4]
The judgment of the magistrate presiding is singularly unhelpful in
determining
precisely what relief was ultimately granted. The
magistrate merely states at the end of her judgment that she grants
the application
and that:
‘
The
complainant is given protection by this court.’
What
is of importance is precisely what protection was given.
[5]
It is worth mentioning in this regard that the appellant requested
reasons
from the magistrate for her decision. The magistrate sat with
that request for over two months and then responded that she had
nothing further to add. Magistrates should respond with promptitude
to invitations to provide further reasons and not dwell on matters
unnecessarily. There is no explanation in this instance as to what
delayed the magistrate for two months. Magistrates should also
carefully consider their ex tempore judgments and assess whether they
have clearly and explicitly expressed themselves in their
judgment
before concluding that they have nothing to add to it. In this case,
the magistrate should have clarified whether she
found that acts of
harassment had been established or whether she found that acts of
sexual harassment had been established. Clarification
of what order
was actually granted would have been of immeasurable assistance in
this matter. I shall, however, assume that the
order granted is that
as set out in paragraph 2 of this judgment. That order is now
challenged on appeal before this court by the
appellant.
[6]
The respondent and the appellant are not blood relatives, but are
linked
through the fact that the appellant is married to the
respondent’s paternal aunt. He is thus the respondent’s
father’s
brother-in-law. The events that populate the
respondent’s version arose from contact that the complainant
and the appellant
had with each other over the years, primarily at
family gatherings. Before getting to those events, it would be
prudent to consider
the requirements of the Act.
[7]
The
Act was enacted with the purpose of protecting citizens’ rights
of privacy, dignity, freedom and security of the person
and their
right to equality as enshrined in the Constitution. On a practical
level, it is intended to provide victims of harassment
with a robust,
swift, cheap and effective remedy against such harassment. In
DVT
v BMT
,
[1]
the Supreme Court of Appeal noted that while the Domestic Violence
Act 116 of 1998 (the DVA) is gender neutral in its content:
‘…
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”. 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 [DVA].
’
(Footnote omitted.)
While
it is acknowledged that what is being referred to is not the Act but
the DVA, there can be no doubt that those words are equally
applicable to the Act. Those that seek the benefit of the Act’s
protection appear to be overwhelmingly female.
[8]
What the concept of harassment
comprises is considered and defined in section 1 of the Act:
‘“
harassment
”
means
directly or indirectly engaging in conduct that the respondent knows
or ought to know—
(a)
causes harm or
inspires the reasonable belief that harm may be caused to the
complainant or a related person by unreasonably—
(i) following,
watching, pursuing or accosting of the complainant or a related
person, or loitering outside of or near the building or place where
the complainant or a related person resides, works, carries
on
business, studies or happens to be;
(ii) engaging
in verbal, electronic or any other communication aimed at the
complainant or a related person, by any means, whether or not
conversation ensues; or
(iii) sending,
delivering or causing the delivery of letters, telegrams, packages,
facsimiles, electronic mail or other objects to the complainant or a
related person or leaving them where they will be found by,
given to,
or brought to the attention of, the complainant or a related person;
or
(b)
amounts to
sexual harassment of the complainant or a related person.’
[9]
Sexual
harassment has its own definition in the Act, and means any:
‘
(a)
unwelcome sexual attention from a person
who knows or ought reasonably to know that such attention is
unwelcome;
(b)
unwelcome
explicit or implicit behaviour, suggestions, messages or remarks of a
sexual nature that have the effect of offending,
intimidating or
humiliating the complainant or a related person in circumstances,
which a reasonable person having regard to all
the circumstances
would have anticipated that the complainant or related person would
be offended, humiliated or intimidated;
(c)
implied
or expressed promise of reward for complying with a sexually-oriented
request; or
(d)
implied
or expressed threat of reprisal or actual reprisal for refusal to
comply with a sexually oriented request.’
[10]
Finally, the Act defines
‘harm’ as being:
‘
any
mental, psychological, physical or economic harm.’
[11]
The
relief claimed by the respondent in her application made no specific
reference to sexual harassment. The magistrate in granting
the order
that she did, made no reference to sexual harassment. I must
therefore approach the matter on the basis that what was
found
established was harassment
simpliciter
.
[12]
The respondent raised four separate complaints
against the appellant in the proceedings before the court a quo. Each
must be considered.
[13]
The first incident occurred on an unspecified date. That we have any
certainty about when
it may have occurred is largely based upon the
age of the respondent. She indicates that she was 13 years old at the
time that
it occurred. She filed her complaint against the appellant
in this matter in the court a quo on 24 November 2021, when she was
then 22 years old. Thus, the events described in this complaint
occurred sometime in 2012. When the events described in this
complaint
occurred is of some significance, as we shall later see.
[14]
On an unidentified date in 2012, the complainant was at her father’s
residence
in
Pietermaritzburg,
[2]
and the
appellant and his family drove up from their home in Durban in order
to visit the respondent’s grandmother who was
ill in hospital
in Pietermaritzburg at the time.
[3]
At some stage during the day, the appellant’s family found
themselves at the respondent’s father’s residence.
At a
particular moment, the respondent was in a room, seated on a sofa
watching television by herself when the appellant came into
the room
and sat down next to her on the sofa. He then apparently touched her
on her legs and on her inner thigh with his hand
whilst asking her
questions about the nature of secretions that emanated from her
private parts. He asked her whether she got wet
and whether it felt
nice. The house was full of people, but the respondent, after
extricating herself from the sofa and the appellant,
did not report
to any of them what had just happened. Instead, she went outside to
the garden and used her cellular telephone (a
Blackberry) to send an
electronic message to her cousin, Ms T S[...], informing her of what
had just occurred.
[15]
The respondent thereafter returned to the room where the television
was but chose to sit
on a single chair so that the appellant could
not again sit next to her. He nonetheless found her in that room
again, and sat on
the arm of the chair. The respondent was wearing a
tight fitting, buttoned shirt. Because of its tightness, gaps
appeared between
the buttons when she sat down. Whilst so seated on
the arm of the chair, the appellant then placed his fingers in the
gaps between
the buttons on her shirt and touched her brassiere and
what the respondent described as her ‘chest area private
parts’.
These events were reported the next day to the
respondent’s aunt and uncle but nothing appears to have been
done about the
appellant’s conduct.
[16]
The second incident occurred approximately seven years after the
first incident. Again,
no specific date is referred to other than the
respondent indicated that it occurred sometime in 2019. She must then
have been
approximately 20 years old. The respondent took her then
boyfriend, later her fiancé, and her brother to her father’s
residence to visit her ill grandmother. The appellant was present
when they arrived. Upon her arrival, the respondent bent over
to hug
her grandmother, who was seated in a chair. As she did so, she felt
someone slap her on the buttocks. Immediately after
being slapped,
she heard the appellant ask her why she had not greeted him. She
concluded that it was he who had slapped her. She
acknowledged him
and felt obliged to hug him. These events were witnessed by the
respondent’s cousin, Mr R S[...], who confirmed
in an affidavit
that he saw the appellant slap the respondent on her buttocks.
[17]
The third incident of which complaint is made occurred during May
2021 at the appellant’s
daughter’s wedding ceremony.
Again, an exact date is not provided. The respondent was given a task
that required her initially
to sit at a table outside the hall where
the wedding reception was to be held. The appellant came to the table
where the respondent
was sitting and sat on a chair next to her. He
then moved the chair that he occupied closer to the respondent. When
the respondent’s
father approached, he moved away. The
appellant then went and sat at the table inside the hall where the
respondent would be required
to sit after her duties outside the hall
were complete. He sat on the chair on which the respondent had placed
her shawl to reserve
it for her later use after her duties outside
the hall had terminated. That left only three seats available at the
table, one of
which was directly next to the appellant. The
respondent believed that this was a stratagem devised by the
appellant to force her
to sit next to him. The respondent was,
however, not prepared to do so and sat elsewhere.
[18]
The fourth incident occurred on 7 November 2021. A prayer session was
arranged to occur
at the respondent’s father’s residence
on that day. The respondent attended with her erstwhile boyfriend,
now her fiancé.
They arrived late. The prayer had already
commenced and there was limited seating available. A space behind the
respondent’s
father, who was seated on the floor, was opened up
and the respondent managed to move a chair into that space. When she
sat down,
the appellant, who was also present, was on her left hand
side. At a certain stage in the prayer, the participants were
required
to close their eyes and keep them closed. After she closed
her eyes, the respondent felt someone on her left hand side grab her
left hand, touched her engagement ring on her left ring finger and
began moving her ring up and down her finger. The respondent
concluded that it could only have been the appellant who had grabbed
her hand given the seating arrangements. As the respondent
described
it:
‘
I
do not know if he knew about my engagement but his grip felt fuelled
with anger.’
The
respondent’s cousin, Mr S S[...], observed what occurred and
confirmed that it was, indeed, the appellant who had grabbed
the
respondent’s hand.
[19]
This event was the straw that broke the camel’s back. Seventeen
days later, on 24
November 2021, the respondent approached the
Pietermaritzburg Magistrates’ Court and ultimately obtained the
order that is
today appealed against.
[20]
In challenging the decision of the court a quo, the appellant raises
two principal misdirections
allegedly committed by the magistrate.
[21]
The first
misdirection identified is that the appellant alleges that the
magistrate ought to have referred the matter to oral evidence
to
resolve disputes of fact which he claims exist. A judicial officer
has a discretion as to whether to hear oral evidence and
is not
obliged to do so. The Act indicates that such oral evidence shall be
‘as the court may direct’.
[4]
In other words, the court may determine whether oral evidence is
required and, if so, to what it should relate. This complaint
by the
appellant lacks substance and cannot be sustained, for two reasons.
Firstly, both the respondent’s legal representative
and the
appellant’s legal representative indicated at the commencement
of the proceedings in the court a quo that they elected
not to call
oral evidence and were content to argue the matter on the papers. In
making the election to argue on the papers, the
appellant must have
instructed his legal representative not to call him as a witness. The
appellant can hardly be heard to now
complain that this is what then
occurred. Secondly, the magistrate actually did call for oral
evidence where she deemed it necessary
and heard the testimony of a
witness, namely the respondent’s father. She thus exercised her
discretion properly and determined
what oral evidence should be
heard. There can accordingly be no cause for complaint.
[22]
The second misdirection raised by the appellant is that the
magistrate allegedly had not
read the papers before hearing the
matter. This is obviously not something of which the appellant can
have direct personal knowledge
of but is a deduction that he makes
from a single remark made by the magistrate during the course of the
hearing. Thus, the appellant
suggests that the following interaction:
‘
MS
SOKHELA
: … In
her explanation, Your Worship, she gives details of the first
incident that
took place when she was 13 years old. Your Worship,
this incident happened when … [intervenes]
COURT
:
When she was 13 years old?
MS
SOKHELA
: Yes,
Your Worship’,
demonstrates
that the magistrate had not read the papers. Had she read the papers,
so the argument goes, she would not have sought
clarification of the
age of the complainant, as she would have known it.
[23]
The argument proceeds that had the magistrate read the papers she
would have had doubts
about the credibility of the respondent. That,
of course, is another conclusion drawn by the appellant. It has as
its foundation
the notion that the appellant’s view of the
respondent’s credibility is the correct view and would be
shared by other
like-minded persons.
[24]
As with the first alleged misdirection, there is no merit in this
alleged misdirection.
There are any number of reasons why the
magistrate may have interposed in the fashion that she did. The most
obvious is that she
did not clearly hear what the legal
representative had said and sought confirmation of what had been
said. To suggest that this
single question reveals her failure to
read the papers is entirely fanciful. The record reveals that the
magistrate was fully conversant
with the facts of the matter.
[25]
In my view,
neither of the alleged misdirections by the magistrate hold any water
and neither can be sustained. I am, nonetheless,
of the view that the
order of the court a quo is wrong and cannot be left to stand. In
coming to this conclusion, I am mindful
of the fact that an appeal
court
will, in general, be slow to interfere with the findings of a lower
court, but if such findings are plainly wrong, the court
of appeal
will indeed interfere therein.
[5]
In the absence of any misdirections, an appeal court is thus bound by
a lower court’s factual findings. I also acknowledge
that it is
not an appeal court’s task to second guess the factual findings
of a lower court.
[6]
Applying
these salutary principles, a court will thus only interfere in the
factual findings of a lower court in exceptional circumstances,
such
as where the court has come to a clearly erroneous finding.
I
find this to be the case.
[26]
The appellant denies that any of the four complaints occurred. He
admits his presence on
each occasion mentioned by the respondent, but
insists that he never acted in an inappropriate manner or in a manner
that would
bring him into conflict with the provisions of the Act.
His denials about his conduct are seasoned with additional argument
as
to why he could not or would not have acted in the fashion of
which complaint is made, flavoured further by submissions as to the
probability of him having acted in this fashion. I do not regard the
defence, such as it is, as being effective or persuasive.
[27]
On the other hand, the respondent’s version is compelling. If
all of which the respondent
complains is a figment of her
imagination, as the appellant insists it is, then one would have
expected that the further incidents
that followed the first incident
would have intensified in their detail and seriousness. That the
first incident demonstrates conduct
that is oppressive and
unacceptable brooks of no doubt. The second incident, likewise,
involves unacceptable conduct: no man may
touch a woman’s
buttocks without her consent. But the third and fourth incidents
cannot be classified as falling into that
category of conduct.
Indeed, it could be argued that the third and fourth incidents
diminish in their objective seriousness. I
find that to be a reliable
indicator of the respondent’s honesty and candour. If she was
making all of this up, then she
would surely have made up far more
explicit allegations concerning the appellant’s conduct to
ensure that there could be
no doubts about his guilt. The
respondent’s evidence was, in any event, buttressed in at least
two of the incidents by the
evidence of witnesses who confirmed her
version.
[28]
To the extent that the magistrate accepted the evidence of the
complainant in preference
to the version of the appellant, she was
entitled, in my view, to do so. But even if the magistrate was
correct in her findings
in this regard does not mean that she was
entitled to arrive at the conclusion to which she came. In my view,
the magistrate came
to an incorrect finding for the reasons that now
follow.
[29]
The first
difficulty with the magistrate’s finding is that she seems not
to have appreciated that the most egregious complaint
made by the
respondent, the first incident, occurred in 2012. This, as previously
mentioned, is significant as the Act only came
into effect on 27
April 2013. No new statute is to be construed as having retrospective
operation, unless that fact is explicitly
stated in the statute.
[7]
There is a compelling reason for this and it is to allow citizens an
opportunity to become familiar with the new law and to permit
them to
conform their future conduct to its requirements.
[8]
[30]
It is not clear from the magistrate’s judgment that she
appreciated this difficulty
in the respondent’s case. She
certainly did not mention it in her judgment. If she had relied upon
the first incident as
a foundation for the order that she granted,
she was not entitled to do so.
[31]
That
brings me to the second difficulty with the magistrate’s order.
In
Mnyandu
v Padayachi,
[9]
a decision of this division, when dealing with the meaning of the
concept of harassment in the Act, the court stated that:
‘
However,
although the definition does not refer to “a course of
conduct”, in my view the conduct engaged in must necessarily
either have a repetitive element which makes it oppressive and
unreasonable, thereby tormenting or inculcating serious fear or
distress in the victim; alternatively, the conduct must be of
such an overwhelmingly oppressive nature that a single act has
the
same consequences, as in the case of a single protracted incident
when the victim is physically stalked
.’
The
conduct of which complaint is made therefore must result in in some
form of torment arising out of constant and ongoing interference
or
intimidation. The conduct of which complaint is made must therefore
be persistent and not intermittent.
[10]
[32]
Accepting for a minute that all the incidents are actionable in terms
of the Act, and had
the respondent and the appellant only met on the
occasions of the four incidents, then notionally it could have been
been argued
that a course of conduct with a repetitive element had
been established, notwithstanding the length of the intervals between
the
meetings. But the respondent and the appellant did not only meet
on those four occasions. The appellant states in this regard that
the
respondent:
‘…
has come to my house, to
my daughter’s wedding, she willingly visited my mother in laws
[sic] home while I was there on numerous
occasions, she attended
braai’s with me being present, she attended new year’s
eve functions with my family and I,
she visited the Wild Coast Sun
with my family and I and in all those times she seemed perfectly
fine…’
The
respondent did not deny these allegations in her replying affidavit
but chose to ‘note’ them, a far from satisfactory
way of
dealing with precise and important allegations. The appellant’s
allegations must therefore be accepted.
[33]
In the
English matter of
Majrowski
v Guy's and St Thomas's NHS Trust,
[11]
the following was said, with which I agree:
‘
Where
. . . the quality of the conduct said to constitute harassment is
being examined, courts will have in mind that irritations,
annoyances, even a measure of upset, arise at times in everybody's
day-to-day dealings with other people. Courts are well able
to
recognise the boundary between conduct which is unattractive, even
unreasonable, and conduct which is oppressive and unacceptable.
To
cross the boundary from the regrettable to the unacceptable the
gravity of the misconduct must be of an order which would sustain
criminal liability …’
[34]
The first incident is not actionable as it predates the
commencement of the Act. The second incident is notionally actionable
and
occurred two years before the respondent actually sought the
protection of the Act. The conduct of the appellant as regards the
third and fourth incidents, in my view, is unattractive, and
potentially upsetting, but not actionable in terms of the Act. There
is therefore only a single actionable act on the part of the
appellant.
Mnyandu
teaches us that that there must be
repetitive conduct or conduct that arises from a single act that is
overwhelming in its oppressiveness.
I am not able to find that in the
conduct alleged of the appellant. Had the second incident been
overwhelmingly oppressive then
I have no doubt that the respondent,
who by then was an adult, would have immediately taken steps against
the appellant. She did
not do so.
[35]
The third difficulty that exists in the order granted by the
magistrate lies in the relief
that she afforded to the related
parties. No evidence whatsoever was adduced about any harassment of
the related persons. The complaint
heard by the magistrate related
only to conduct by the appellant towards the respondent and to no
other person.
[36]
The fourth and final difficulty is to be found in the magistrate’s
reasoning. She
stated that the appellant would not suffer any
inconvenience by the granting of the order if he had not acted as
described and
if he had no intention of acting that way in the
future. That form of reasoning cannot be supported. Orders are to be
granted purely
on the strength of the available evidence presented
and not on the basis that, if granted, they will not cause
inconvenience.
[37]
I, nonetheless, find the appellant’s conduct disquieting. In
the circumstances, while
the appellant has succeeded in overturning
the order that he appealed against, I am of the view that the
interests of justice require
that there be no order as to costs.
[38]
I would accordingly propose the following order:
1.
The appeal is upheld.
2.
The order granted on 30 March 2022 is set aside and replaced
with the
following order:
'The
application for a protection order in terms of the provisions of s
9(4) of the Protection from Harassment Act 17 of 2011 is
dismissed.'
3.
There shall be no order as to costs either in the court a quo
or on
appeal.
MOSSOP
J
I
agree and it is so ordered:
MADONDO
DJP
APPEARANCES
Counsel
for the appellant
Mr
A Baijnath
Instructed
by:
Deepika
Ramduth Attorneys
Care
of:
Tatham
Wilkes Incorporated
200
Hoosen Haffejee Street
Pietermaritzburg
Counsel
for the respondent
Mr
N D Sokhela
Instructed
by
Legal
Aid South Africa
187
Hoosen Haffejee Street
Pietermaritzburg
Date
of Hearing
: 21
April 2023
Date
of Judgment
: 12 May
2023
[1]
DVT
v BMT
[2022]
ZASCA 109
;
2022 (6) SA 93
(SCA) para 1.
[2]
While
that is where the respondent’s father resides, the house is
apparently owned by his mother. It shall, nonetheless,
be referred
to henceforth as ‘the respondent’s father’s
residence’.
[3]
Sight must also not be lost of the fact that the appellant and the
respondent ordinarily live some 80 kilometres apart from each
other.
[4]
Section
9(2)
(b)
of the Act reads as follows:
‘If the respondent appears on the return date and opposes the
issuing of a protection order, the court must proceed to
hear the
matter and-
(a)
…
(b)
consider any further affidavits or oral evidence as it may direct,
which must form part of the record of proceedings.’
[5]
R
v Dhlumayo and another
1948
(2) SA 677
(A)
at 705-6.
[6]
Mashongwa
v Passenger Rail Agency of South Africa
[2015]
ZACC 36
;
2016
(3) SA 528
(CC)
para 45.
[7]
Peterson
v Cuthbert
1945
AD 420
at
430.
[8]
Landgraf
v USI Film Products
[1994]
USSC 10
;
511 US 244
(1994) at 265.
[9]
Mnyandu v
Padayachi
2017
(1) SA 151
(KZP) para 68.
[10]
R
v Smith
[2012]
EWCA Crim 2566;
[2013] 2 All ER 804
para 24.
[11]
Majrowski
v Guy's and St Thomas's NHS Trust
[2006]
UKHL 34
;
[2006] 4 All ER 395
;
[2006]
UKHL 34
;
[2007] 1 AC 224
para 30 per Lord Nicolls.