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[2023] ZAECMKHC 70
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T.N v Z.M (CA114/2022) [2023] ZAECMKHC 70 (23 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: CA114/2022
In
the matter between:
TN Appellant
and
ZM Respondent
APPEAL
JUDGMENT
Bloem
J
[1]
On 5 January 2022 the respondent made an application for a protection
order.
On 7 January 2022 the magistrate issued an interim protection
order against the appellant wherein he was ordered, pending the
return
date, not to “
abuse, assault, threaten [or] harass
[the] applicant in any way possible
”. The interim
protection order that was served on the appellant called upon him to
show cause on the return date, being 11
March 2022, why a protection
order should not be issued. On 11 March 2022 the appellant delivered
his answering affidavit wherein
he set out the facts upon which he
submitted that the interim order should be discharged. The respondent
deposed to a replying
affidavit on 18 April 2022, which
must have been delivered thereafter. On 5 May 2022 the magistrate
issued a protection
order against the appellant in the following
terms:
“
(a)
Applicant succeeds.
(b)
Respondent is prohibited from visiting the applicant.
(c)
Respondent is prohibited from entering no. [....] R[....]
R[....] G[....] East London.
(d)
Respondent’s communication with the applicant is
limited in the following ways:
1.
Communication at work is allowed only for work related matters.
2.
Communication outside of work is limited to telephone calls, text
messages and/or emails only for purposes related to access
to the
children or for emergency purposes.
(e)
Respondent is not to assault the applicant.
(f)
No order as to costs”.
[2]
The appellant appeals against the issue of the protection order on 5
May 2022.
[3]
Shortly before the hearing of the appeal, the registrar handed a copy
of a medical
certificate in respect of the respondent to us. For what
it is worth, it certified that on 18 May 2023 Dr JA Olabode of East
London
examined the respondent. He recommended “
sick leave
from 18/05/2023 to 19/05/2023, both days included
”. The
medical certificate furthermore stated that “
other
information/recommendations: medical illness
”. That medical
certificate was emailed to the registrar by the respondent at 08h50
on the morning of the hearing of the appeal.
Therein the respondent
stated that “
I will not make it to court today. Kindly
receive the document attached
.”
[4]
The
respondent did not file a notice of intention to oppose the appeal.
She also did not deliver heads of argument. She did not
indicate in
the aforesaid email that she intended to apply for the postponement
of the hearing of the appeal. It cannot be assumed
that, because the
respondent emailed a certificate to the registrar, she applied for
the postponement of the appeal. Such an application
would have
required at least an affidavit from the medical practitioner to
explain why the respondent could not attend court.
[1]
The appellant’s legal representatives were made aware of the
medical certificate only after the registrar had made it available
to
counsel shortly before the commencement of the hearing of the appeal.
Having taken instructions, counsel informed us from the
bar that his
instructions were to proceed with the appeal.
[5]
One of the factors that weighed heavily with us was the appellant’s
prospects
of success on appeal. If the appeal was postponed, the
respondent would in all probability have been ordered to pay the
costs occasioned
by such postponement. The respondent has not
instructed legal representatives to represent her in the appeal
primarily because
of financial reasons. An order that she should pay
the costs occasioned by the postponement would have exacerbated her
financial
position. That factor and the prospects of success, more
particularly the clear misdirections by the magistrate, caused us to
proceed
with the appeal.
[6]
This matter has an unfortunate and long history, but what prompted
the respondent
to apply for the protection order are the events of
November and December 2021. Before I deal with the facts that the
parties placed
before the magistrate in support of or opposition of
the respondent’s application for a protection order, it is
important
to record that the appellant and the respondent were
involved in a romantic relationship from which two children were born
during
2014 and 2017 (the children). Their relationship came to an
end during 2018, on the appellant’s version, or 2019, on the
respondent’s version. During 2019 and while the parties were
residents of Postmasburg, the respondent opened a criminal case
of
assault against the appellant. The appellant stated that the
respondent opened that case against him in retaliation of a criminal
case of assault that he had opened against her in Postmasburg. The
public prosecutor refused to prosecute any one of the parties.
[7]
On 8
September 2020, at the instance of the appellant, the High Court in
Mthatha ordered the respondent to afford the appellant
reasonable
contact with the children, pending the finalisation of a parenting
plan referred to in section 33 of the Children’s
Act;
[2]
and ordered the respondent’s mother to release the children “
to
the care of the [appellant]
whenever
he exercises his reasonable contact rights
”.
In paragraph 3 of that order, the respondent’s mother was also
interdicted and restrained from unlawfully interfering
with the
appellant in the exercise of his rights of reasonable contact with
the children.
[8]
On 6 August 2021, once again at the instance of the appellant, the
magistrate
in Butterworth ordered
inter alia
:
“
3
.
The applicant and the respondent are ordered to jointly or severally
approach the office of the Family Advocate in the Northern
Cape or
any other professional service provider to assist them with parenting
plan.
4.
The parenting plan envisaged in paragraph 3 of this order must be
finalised within 6 weeks from the date
of this order or unless the
professional body contemplated in paragraph 3 of this order states
otherwise or unless appeal or review
proceedings are launched by
either the applicant or the respondent.
5.
It is ordered that the children must reside with the respondent in
Postmansburg subject to the applicant’s
contact with the
children. In the event the respondent is unable to reside with the
children, the applicant is ordered to reside
with the children. The
relocation of the children from [a specified town in the Eastern
Cape] to Postmansburg must be done with
due consideration to the
schools’ academic calendar as the children’s schooling
should not be abruptly disturbed but
this order must be implemented
no later than the beginning of the new school term in 2021.
6.
The parenting plan envisaged in paragraph 3 of this order must be
finalised within 4 weeks from the date
of this order unless
professional body contemplated in paragraph 2 of this order states
otherwise or unless appeal or review proceedings
are launched by
either the applicant or the respondent. In addition, pending the
finalisation of parenting plan in terms of paragraph
3 of this order,
the respondent is ordered to allow the applicant to exercise contact
with the children as per High Court Order.”
[9]
For the sake of completeness, the allegations that the respondent
made in her
affidavit in support of the protection order are
reproduced hereunder. They read as follows:
“
4.2
How are these persons affected?
T
[the appellant] came to our home and made a mockery of my mother in
presence of the two minor children. Intimidate, bully and
harass her,
using state personnel; the police and sheriff, both from Butterworth.
The sheriff will demand my children from my mother
telling her they
are not hers, while T takes a video of the incident.
5.
INFORMATION REGARDING ACTS OF DOMESTIC VIOLENCE
Give
full details regarding all incidents of domestic violence and also
indicate whether firearms or other dangerous weapons were
used, what
injuries have been sustained and whether medical treatment was
obtained:
T
assaulted me while we were staying together with the children in
Postmasburg. I opened a case against T at Postmasburg Police
station
case no 2019/11/26 ref no. 257/11/2019. Because of the issues which I
discussed in section 4.2 of this form, I opened a
case of
Intimidation, abuse and harassment at Butterworth Police station case
no 141/4/2021. I have since notified my employer
such that in
December/late November 2021 I opened a case of harassment against T.
Divorce
papers have been served to T case no 335/2021. T is denying the
marriage, delaying the divorce process.
6.
INFORMATION REGARDING URGENCY OF APPLICATION
Submit
the reasons why the Court has to consider the application as a matter
of urgency and why undue hardship may be suffered if
the application
is not dealt with immediately Living in fear, unable to predict when
will the next attack come. Emotional and psychological
trauma.
Children exposed to violence. Anxiety, depression and emotional
distress to the elderly. Fear for my life and that of my
family.
T
disrespects my mother and my home. My mother is a pensioner and has
provided my children a home after T chased us from the main
house in
December of 2019. So this is a way of T to harass and bully my
helpless mother from her comfort home.
When
T collects the children he brings sheriff and police who will come
not as professionals in a way that they discuss this matter
as if
they are T’s family members.
T
can come to my home without making an appointment. In
November/December of 2021 he wrote me an email saying he will collect
the
children on the 26 December 2021. On the 26 December, T did
not come.
On
the 29 December just after 15h30 T came to my home with the sheriff.
I informed the sheriff that he was carrying an outdated
court order
which was issued at Umtata High Court on the 17 September 2020 (case
no 2314/2020).
The
sheriff went back to T’s car and they drove off. After 45
minutes the sheriff and police and T came back, T sat in the
car,
while the sheriff and two police personnel were talking to me by the
gate.
I
once again told the sheriff that he was carrying a court order from
Umtata High Court which was overruled by the Children’s
Court
in Butterworth. The sheriff asked that I open the gate so that he can
search my home together with the police. I informed
them that they
must produce a search warrant and that T is fully aware of the case
which he opened at Butterworth Children’s
Court where a
judgment was made (case no 14/1/4-04/2021).
Every
time T collects the children, he sits in the car while the sheriff
and police come into my yard to collect. I am now worried
about the
well-being of these minor children because it is not necessary that
they must be collected in this manner.
Page
21 of judgment case 14/1/4-2021 states that the parenting plan must
be finalised within four weeks from the date of the order.
T never
submitted a parenting plan to the Butterworth Children’s Court.
In addition to this even though T has access to the
minor children,
he does not provide shelter, education, food and extra mural
activities. At the beginning of 2021 T opened a case
against me (case
no 2314/2020) for contempt of court proceedings.
T
uses any opportunity at his disposal to ensure that I miss work. We
both work for the same company in Postmasburg, case that he
had
opened against me require traveling and I am always absent at work. I
have to constantly explain to my boss why she must grant
me leave.
I
made several attempts for T to support the children since he is a
father and both of us must uphold the children’s right
which
involve money. T dismissed my plea. He has since decided to pay
R6 000 for two children since February 2021. I applied
for
maintenance in Butterworth, however the magistrate did not want to
take the case to trial, since there was a pending case on
custody of
the same children. I never accepted her reasoning because I have been
struggling for some time financially and I believe
she use power
vested in her.
T
asked for invoices for children’s costs and he also called both
schools. My lawyer at the time provided all invoices and
breakdown of
the children’s monthly costs. T chose not to increase the
R6 000. I was getting the money before or on
the 4
th
day of the month. I have not received the money for January 2022.”
[10]
In his answering affidavit, the appellant alleged that, whenever he
wanted to see his minor children,
he made an appointment with the
respondent. He alleged that on 30 November 2021 he sent an email to
the respondent informing her
that he would collect the children on 26
December 2021 to spend time with him and his family. The respondent
did not respond to
that email. The respondent admitted in her
affidavit that she received the appellant’s email. On 29
December 2021, he called
the respondent on many occasions, but she
did not respond to those calls or text messages. Out of desperation
he approached the
sheriff who was unable to locate the respondent or
the children. He approached his attorney who made arrangements with
the sheriff
to assist him to collect the children from the respondent
on 29 December 2021. On that day the respondent denied access to the
sheriff, who secure the services of the South African Police Service.
The respondent denied access to the members of the South African
Police Service to the house in which she was residing at the time.
She stated that the children were in Postmasburg. The appellant
denied that he ever went to the respondent’s home without being
accompanied by the sheriff. He also denied that he intimidated
or
harassed her. His case was that all he wanted to do was to exercise
his right of access to his children.
[11]
In response to the above allegations, the respondent deposed to an
affidavit on 18 April 2022 wherein
she stated the following, albeit
that she referred to herself in the first person and the appellant in
the second person:
“
You
know where my home is however on the 26 December 2021 (Sunday) you
did not go collect the children. On the 29 December you went
to my
home without calling or emailing since you missed the initial
collection date, you chose to collect the cops and sheriff
to do your
dirty work. Mr M [the appellant’s attorney] must select choice
of words which T can use, the marriage still exist,
T is refusing to
sign for divorce papers, so for now until stated otherwise by
Kimberly High Court, T is married to Z. Yes, T committed
a crime
marrying while married”.
[12]
It is
against the above factual background that it must be determined
whether the magistrate’s order was supported by those
facts. In
terms of section 6(4) of the Domestic Violence Act
[3]
the court must, after considering the evidence and hearing the
complainant and respondent or their legal representatives, issue
a
final protection order if it finds, on a balance of probabilities,
that the respondent has committed or is committing an act
of domestic
violence. In this case, the magistrate was accordingly permitted to
issue a final protection order, provided that he
found, on a balance
of probabilities, that the appellant had committed an act of domestic
violence or was committing an act of
domestic violence.
[13]
In terms of section 1 of the Domestic Violence Act ‘domestic
violence’ means:
“
(a)
physical abuse;
(b)
sexual abuse;
(c)
emotional, verbal or psychological abuse;
(d)
economic abuse;
(e)
intimidation;
(f)
harassment;
(fA)
sexual harassment;
(fB)
related person abuse;
(g)
spiritual abuse;
(h)
damage to property;
(hA)
elder abuse;
(hB)
coercive behaviour;
(hC)
controlling behaviour;
(hD)
to expose a child to domestic violence;
(i)
entry into the
complainant's-
(ii)
permanent
or temporary residence without their consent, where the
parties
do not share the same residence; or
(ii)
workplace or place of study, without their consent, where
the parties do not share the same workplace or place
of study; or
(j)
any other behaviour of an
intimidating, threatening, abusive, degrading, offensive or
humiliating nature towards a complainant,
where such conduct harms,
or inspires the reasonable belief that harm may be caused to the
complainant.”
[14]
In terms of section 1 of the Domestic Violence Act ‘physical
abuse’ includes:
“
(a)
physical violence or threats of
physical violence towards a complainant;
(b)
to deprive the complainant of their liberty or threatening to do so;
(c)
to administer, attempt to administer or threaten to administer-
(i)
any drug as defined in section 1(1)of the
Drugs and
Drug Trafficking Act, 1992
Act 140 of 1992);
(ii)
any Scheduled substance as defined in section 1 (1) of
the Medicines and Related Substances Act, 1965 (Act
101 of 1965),
that affects or may affect a complainant's judgement or
decision-making abilities or is harmful to the health or
wellbeing of
the complainant; or
(iii)
any
chemical or other substance that is harmful to the health or
wellbeing of the complainant, to a complainant without the
complainant's
consent; or
(d)
withholding or threatening to
withhold a complainant's medication”.
[15]
The protection order prohibited the appellant from visiting the
respondent. There was no evidence,
not even from the respondent, to
show that the appellant visited her. Her evidence was that, whenever
the appellant collected the
children, not visiting her, he sat in his
vehicle while the sheriff and members of the South African Police
Service would enter
the premises of her home. There was no evidence
that, immediately prior to 29 December 2021, the appellant visited
her. The interdict
against the appellant in that regard has no
factual basis.
[16]
On the respondent’s own version, the appellant sat in his
vehicle while the sheriff and the police
collected the children. The
magistrate referred to paragraph 7 of the application form for a
protection order, wherein the respondent
was requested to state the
relief sought. She stated that she wanted the respondent to be
ordered not to enter 19 Recreation
Road, Gonubie, East London
(the premises). The magistrate stated that it would be in the
respondent’s best interests, in
the circumstances of the case,
that the appellant be interdicted from entering the premises of her
home, without giving any reasons
therefor. There was no evidence to
show that the appellant entered the premises. The relief sought by
the respondent in that regard
was not supported by any evidence
justifying an order interdicting the appellant from entering the
premises.
[17]
In the
protection order, the magistrate regulated the manner in which the
appellant should communicate with the respondent (the
communication
order). The magistrate found that the relationship between the
parties was toxic, as a result of which “
there
was no peace at home
”.
He found that there was “
evidence
that the [respondent] does not want the [appellant] to talk to her…
”.
That finding is incorrect. The respondent did not say in her founding
affidavit, which has been quoted in full, that she
did not want the
appellant to talk to her. She was required to make out at least a
prima
facie
case for a communication order. She did not have any complaint in
that regard. Furthermore, there is no indication from the prescribed
form, which the respondent completed to secure the protection order,
that she sought the communication order. Courts should decide
only
issues before it, as pleaded by the parties.
[4]
The magistrate acted improperly when he granted the communication
order despite the fact that neither the respondent nor the appellant
dealt with it in their respective affidavits.
[5]
[18]
The communication order must be set aside for two reasons. Firstly,
the respondent did not apply for
the grant of the communication
order, with the result that the respondent was not required to make
any averments in that regard.
The communication order was according
granted without the appellant having been heard. Secondly, there was
no evidence upon which
the communication order was based.
[19]
Except for the allegation that the appellant assaulted her at
Postmasburg during 2019, the respondent
placed no further evidence
before the court to the effect that the appellant assaulted her. In
this regard, the magistrate stated
the following:
“
I
have clearly stated above that both parties have made allegations
against one another related to assault and they even opened
criminal
cases against each other.
In
this regard I am convinced that there is a possibility of these kinds
of incidents happening/repeating themselves in the future
if they go
unchecked. Hence I am of the view that there should be an order in
place prohibiting such acts of violence
”.
[20]
The magistrate seems to have reasoned that, because the parties laid
criminal charges against each
other in Postmasburg in 2019, he was
“
convinced that there is a possibility of these kinds of
incidents happening/repeating themselves in the future if they go
unchecked”.
He was of the view that the protection order
should be issued “
prohibiting such acts of violence
”.
[21]
There was no evidence before the magistrate that the appellant
assaulted the respondent immediately
prior to the institution of the
proceedings for a protection order. She did not say when, where and
under what circumstances the
alleged assault occurred. But, even
assuming that there were merits in the allegation of an assault on
her during 2019, the respondent
placed no evidence before the court
to indicate that there was a threat of a repeat of such assault on
her at the time when she
instituted the proceedings for a protection
order. Her allegation of a fear or such an assault had no factual
basis. In the circumstances,
the magistrate should not have granted
the protection order. The appeal must therefore be upheld. Mr
Mayekiso, counsel for the
appellant, indicated that, if successful
and because the appellant did not want further acrimony between
himself and the respondent,
he did not seek a costs order against the
respondent. Such an order would be just under the circumstances.
[22]
In the result, it is ordered that:
1.
The appeal is upheld.
2.
The order granted by the magistrate on 5 May 2022 is set aside and
replaced with the following
order:
“
1.
The interim protection order be and is hereby set aside.
2.
The application for a protection order is dismissed.”
GH
Bloem
Judge
of the High Court
I
agree.
OH
RONAASEN
Acting
Judge of the High Court
For
the appellant: Mr
M Mayekiso, instructed by Mbabane &
Maswazi Inc, East London.
For
the respondent: No
Appearance.
Date
of hearing: 19 May 2023.
Date
of delivery: 23 May 2023.
[1]
Hanson,
Tomkin and Finkelstein v DBN Investments (Pty) Ltd
1951
(3) SA 769
(N) at 775G-776A.
[2]
Children’s
Act, 2005 (Act 38 of 2005).
[3]
Domestic
Violence Act, 1998 (Act 116 of 1998).
[4]
Fischer
and another v Ramahlele and others
2014
(4) SA 614
(SCA) at para 13.
[5]
Mthimkulu
v Mahomed
2011
(6) SA 147
(GSJ) at para 7.