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[2023] ZAKZPHC 126
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Horner v Baranov (AR384/22) [2023] ZAKZPHC 126 (3 November 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR384/22
In the matter between:-
GRANT HORNER
APPELLANT
(Respondent
in court
a quo
)
and
GARY DAVID BARANOV
RESPONDENT
(Applicant
in court
a quo
)
JUDGMENT
ANNANDALE,
AJ
[1]
This is an appeal against the confirmation
of an interim protection order against the appellant by an additional
magistrate. The
respondent abides the decision of this court on the
merits.
[2]
The issue in this appeal is whether the
learned magistrate was correct in finding that the conduct on the
basis of which the protection
order was sought constitutes harassment
as envisaged in the Protection from Harassment Act, 17 of 2011 (the
Act).
[3]
Section 1 of the Act contains the following
definitions which are relevant to the resolution of that issue: in
relevant part defines
harassment as follows:-
‘“
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). . .
(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). . .
“
harm”
means any mental, psychological,
physical or economic harm.”
The law
[4]
The law on what constitutes harassment and
how conduct alleged to be in violation of the Act is to be evaluated
is settled. In
Mnyandu v Padaychi
2016
4 All SA 110
(KZP) (
Mnyandu
),
a full bench of this division conducted an extensive review of the
genesis of the Act and comparable legislation in other jurisdictions
before expounding on the correct interpretation of ‘harassment’.
It is the only judgment on the topic to which we were
referred and
which we could find. It is therefore both appropriate and convenient
to quote from it to a somewhat larger degree
than would usually be
necessary.
[5]
The following paragraphs of
Mnyandu
bear directly on the issue before us:
‘
[44] Given
the comprehensive ambit of the Act, it is essential that a consistent
approach be applied to the evaluation of the
conduct complained of,
although the factual determination will depend on the circumstances
under or context within which the alleged
"harassment"
occurred. If the conduct against which protection is offered by the
Act were to be construed too widely,
the consequence would be a
plethora of applications premised on conduct not contemplated by the
Act. On the other hand, too restrictive
or narrow a construal may
unduly compromise the objectives of the Act and the constitutional
protection it offers. Therefore, the
interpretation of the term
"harassment" as defined in the Act, is significant.
[65] It
is apparent from these cases that the offence of harassment is not
merely constituted by a course of conduct
that is oppressive and
unreasonable but that the consequences or effect of the conduct ought
not cause a mere degree of alarm;
the contemplated harm
is
serious
fear,
alarm, and distress. The legal test is always an objective one: the
conduct is calculated in an objective sense to cause alarm
or
distress, and is objectively judged to be oppressive and
unacceptable.
[68] Based
on its examination of international legislation, the SALRC
recommended that the recurrent element of the offence
should be
incorporated in the definition of "harassment". The
definition in the Act states that "harassment"
is
constituted by "directly or indirectly engaging in
conduct. . . ". 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.
[71] In
my view the conduct of the appellant in sending the email may have
been unreasonable, as she allowed her emotions
to cloud her
perception, but I am not persuaded that her conduct was objectively
oppressive or had the gravity to constitute harassment.’
[6]
Whether the conduct complained of
constitutes harassment must consequently be determined in accordance
with these principles. The
issue arises in the context of the
following facts.
The facts
[7]
The respondent and the appellant’s
brother live in the same residential estate. There is a level of
animosity between the
respondent and the appellant’s brother
and there are legal proceedings pending between them relating to
various disputes.
[8]
On
1 November 2021 whilst the appellant was visiting his brother, there
was an incident in which the appellant’s Rottweiler
dog bit the
respondent’s Maltese Poodle and the respondent’s finger.
There is some contestation regarding exactly how
the incident
happened, particularly whether the appellant had his hand on his dog
at the time, or whether the animal had simply
been let loose in the
common area of the complex where the incident occurred.
[1]
It is unnecessary to determine whose version of events on this score
is correct because the incident was plainly not one of harassment
even on the respondent’s version that the appellant let his dog
loose without regard for others. The dog bite incident is
however
important context for what followed.
[9]
The
respondent was with his dog and his four children
[2]
aged between 3 and 7,
[3]
at the
time of the dog bite incident and found it very traumatic. His
Maltese was admitted to the vet
[4]
for surgery and the respondent attended at the emergency room of a
nearby hospital. The medical report records that he sustained
a
superficial laceration to his right thumb.
[5]
The respondent found the incident extremely traumatic, and he and his
children underwent psychological therapy as they have a fear
of large
dogs. The respondent also laid two criminal charges against the
appellant
[6]
as a result of this
incident, one for keeping a ferocious dog and another for malicious
damage to his property, the poodle.
[10]
The respondent made it clear he intended to
lay a civil claim against the appellant too. This was forestalled by
the conclusion
of a settlement agreement in terms of which the
appellant agreed to pay R22,000 to the respondent as compensation for
his loss
and damage arising out of the dog bite incident, in exchange
for which the respondent undertook not to pursue any further civil
claims against the appellant.
[11]
After
1 November 2021 the appellant visited his brother without incident,
although the respondent did regard the fact that the appellant
brought his dogs with him as insensitive.
[7]
[12]
On 19 February 2022, after the settlement
agreement had been concluded and the agreed payment made, the
respondent and his son were
walking in the common area of the
residential estate with their dog when the appellant arrived to visit
his brother and a verbal
exchange ensued.
[13]
The respondent alleged that the appellant
said, ‘hey big boy, I see you got your way’ in apparent
reference to the settlement
agreement, to which the respondent
replied, ‘Excuse me?’ The appellant denies this exchange.
The learned magistrate
found that the respondent’s version was
more probable in the light of evidence that the appellant had sought
to include certain
additional matters in the settlement agreement,
which the respondent refused to accept. The settlement was ultimately
concluded
effectively on the respondent’s terms. I see no basis
upon which the finding of the court below on the score can be
faulted.
[14]
It is common cause that the appellant
enquired ‘how’s your hand?’ to which the respondent
replied, ‘mind
your own business’ and the appellant
countered with words to the effect ‘karma is a bitch’ and
‘karma will
get you.’
[15]
It was on the basis of the events of 19
February 2022 that the respondent applied for, and was granted an
interim protection order
on 23 February 2022 in the following terms:
‘
The
(appellant) is prohibited by this court from:
a)
engaging in or attempting to engage
in harassment of
(i)
the (respondent)and/ or
(ii)
the following related persons:
(a)
Alana Baranov -wife
(b)
L[...] B[...]-child;
(c)
F[...] B[...]- child;
(d)
A[...] B[...]-child;
(e)
S[...] B[...]— child
(b)
Enlisting the help of another person to
engage in harassment of the complainant (respondent) and/or above
related persons; and/or
(c)
Committing any of the following acts/s:
(i)
Not to assault, threaten and intimidate the
complainant (respondent) and related persons in paragraph 3. 1
(a)(ii);
(ii)
Not to enter into the (respondent)
complainant's residence at no.1[...] C[...] L[...], Driftwood Estate,
Prestondale, Umhlanga;
(iii)
Not to enter the Driftwood Estate, gated
complex with the (appellant')s rottweiler or any other vicious dog.’
[16]
Between the grant of the interim order, and the return date, the
appellant visited his brother on numerous
occasions without
incident.
[8]
Having considered
the affidavits, filed by both parties, and having heard limited oral
evidence, the learned magistrate confirmed
the interim order on the
extended return date.
Analysis
[17]
It will be apparent from the factual exposition above, that the
respondent’s application
for a protection order was based on
the single incident of the verbal exchange of 19 February 2022. That
being so, by virtue of
Mnyandu
,
[9]
the learned magistrate had to be satisfied that, viewed objectively,
the appellant’s conduct was of ‘such an overwhelming
oppressive nature’ as to make it ‘oppressive and
unreasonable, thereby tormenting or inculcating serious fear or
distress’
in the respondent. It is not without significance
that the court below does not reference this test at all.
[18]
The learned magistrate appears to have approached the application as
if the dog bite incident
was itself an act of harassment and the
events of 19 February 2022 (which she mistakenly refers to as having
occurred on 19 November
2021) as a ‘follow up incident’
[10]
and thus part of a pattern of behaviour.
[19]
The judgment is however not altogether clear on this score. It deals
with a debate about whether
the dog bite could be referred to and
then finds that the incident was relevant as it ‘set the scene
for the problem that
ensued which resulted in the complainant
approaching the court’
[11]
which is suggestive of the events of 1 November 2021 being of
contextual relevance only. The court below also however
referred
to those events as the catalyst for the incident in
February, the following year, which suggests a causal link and the
perception
of a pattern of conduct.
[20]
Despite the unfortunate lack of clarity in the judgment itself, there
are two matters that indicate
the court below approached this as a
‘pattern of conduct’ type of case. The first is that the
court found that the
respondent and his family had been physically
and emotionally traumatised by the events of 1 November 2021.
[12]
That finding is tantamount to a finding that the dog bite incident
constituted harassment, given the definition of that term in
the Act.
Second, that is the only reading of the judgment which can explain
the fact that the learned magistrate confirmed the
interim protection
order, which prohibited the appellant not only from engaging in
conduct in relation to the respondent and his
son who was present
with him on 19 February 2022, but from conduct in relation to the
respondent’s wife and his other three
children who were not
present. These parties were said by the respondent to have been
affected and badly traumatised by the dog
bite incident (although his
wife was not present), not the events of February 2022. There was
simply no basis upon which the events
of 19 February 2022 could have
grounded the relief the court granted.
[21]
To the extent the learned magistrate found that the respondent’s
conduct on 1 November
2021 amounted to harassment, that was a
misdirection. There is nothing, even on the respondent’s
version of the events surrounding
the dog bite incident, to suggest
that the appellant was in anyway engaging in conduct which he knew or
ought to know would cause
harm to the respondent in the sense
envisaged in the Act.
[22]
Even if the extensive analysis of the events of the dog bite incident
and its effect on the respondent
and his family were regarded by the
court below only as relevant to the context in which the verbal
exchange of 19 February 2022
must be evaluated, the finding of the
court below that the appellant’s conduct on 19 February 2022
was harassment and intimidation,
[13]
cannot stand.
[23]
The court below took issue with the fact that the appellant addressed
the respondent as ‘big
boy’, which the learned magistrate
found was very undesirable, did not create a good impression and
amounted to a confrontational
approach.
[14]
The learned magistrate did not however find that the utterance of
those words was harassment, and was undoubtedly correct on that
score.
[24]
The finding of the court below that the appellant’s conduct on
19 February 2022 was harassment,
was based on its assessment that the
appellant telling the respondent that karma was going to get him and
that ‘karma is
a bitch’ amounted to the appellant
‘placing some kind of curse’ on the respondent.
[15]
The court below found that the utterance of these words ‘obviously
had the effect of causing trauma to the complainant’
and would
have the same effect on any reasonable person.
[25]
In my view this finding constitutes a misdirection both on the law
and the facts. Colloquially,
karma is the concept that one’s
own actions influence what happen to one in the future. Bad deeds
beget bad luck if you will.
The very nature of karma is therefore
that a person determines their own luck. The construction of the
court below of the statement
that ‘karma will get you’ as
a curse, is linguistically incompatible with this concept and in any
event doesn’t
amount to the appellant intending to cause harm.
In addition, in my view the statements cannot objectively be regarded
as being
of such an overwhelmingly oppressive nature that their
utterance on a single occasion would be such as to torment and
distress
the respondent to the degree required for that verbal
communication to constitute harassment. To echo the words of the
court in
Mnyandu, the appellant’s utterances were unfortunate
but I am not
persuaded that his conduct was objectively oppressive or had the
gravity to constitute harassment.
[26]
It follows that the court below erred when it confirmed the interim
protection order and the
appeal must succeed.
[27]
The appellant initially sought an order of costs against the
respondent, even though he abided
its result. No costs were awarded
against the appellant in the court below and the respondent did not
oppose the merits of the
appeal. Despite this, the appellant sought
costs against the respondent. At the hearing before us, the appellant
indicated that
it no longer persisted in seeking that relief.
[28]
I consequently grant the following order:
1.
The appeal is upheld.
2.
The order of the court below confirming the interim protection order
granted on 23
February 2022 is set aside and replaced with the
following:
‘
The
interim protection order granted on 23 February 2022 is discharged.’
ANNANDALE,
AJ
I
concur
MNGADI
J
JUDGMENT
RESERVED:
4 AUGUST 2023
JUDGMENT
HANDED DOWN:
03 NOVEMBER 2023
Appearances
For appellant:
MS L REDDY
Instructed by:
SHEPSTONE &
WYLIE
1
st
FLOOR, ABSA BUILDING
15 CHATTERTON
STREET
PIETERMARITZBURG
Tel: 031 575 7029
Email:Letacia.govender@wylie.co.za
Ref: LG/HORN40749.1
For respondent:
NO APPEARANCE
Instructed by:
MOORE AND
ASSOCIATES
UMHLANGA
Tel:+27
10
446 0722
c/o VIV GREENE
ATTONREYS
132 ROBERTS ROAD
PIETERMARITZBURG
Email:
storm@moore-law.co.za
Ref: S Moore/
BA2001
[1]
P
44 para 6 cf p 61 lines 1 -3
[2]
P
6 line 3
[3]
P
5 table in para 3
[4]
P
14
[5]
P
16
[6]
P
14 l25 – 30
[7]
P
62 l 25 – 30
[8]
P
63 para 11
[9]
Ibid
para 68
[10]
P
144 lines 16 -21
[11]
P
136 lines 12 - 17
[12]
P
128 lines 1 -4 , and 141 lines 15 – 20
[13]
P
144 lines 16 – 21
[14]
P
141 lines 4 - 6
[15]
P
143 lines 1 -5