McGroarty v Hutchinson (AR03/2021) [2022] ZAKZPHC 22 (3 June 2022)

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[2022] ZAKZPHC 22
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McGroarty v Hutchinson (AR03/2021) [2022] ZAKZPHC 22 (3 June 2022)

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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR03/2021
In
the matter between:
MICHAEL
McGROARTY

APPELLANT
And
VALERIE
ROZANNE HUTCHINSON
RESPONDENT
ORDER
The
following order shall issue:
(a)
The application for condonation against the late noting of the appeal
is granted.
(b)
The appeal succeeds.
(c)
The order of the court a quo is set aside and is substituted with the
following order:
‘
1.
The interim protection order granted on 14 October 2019
is discharged;
2.
There is no order as to costs.’
(d)
Each party is to bear its costs of the appeal.
JUDGMENT
Delivered
on: 3 June 2022
Masipa
J (Radebe J concurring):
Introduction
[1]
The appellant appeals against a judgment of the magistrates’
court, Verulam
(the court a quo), handed down on 5 December 2019,
confirming an interim protection order dated 14 October 2019, issued
in terms
of the Protection from Harassment Act 17 of 2011 (the Act).
Reasons for judgment were handed to the parties on 17 December 2019.

The appellant herein was the respondent in that application while the
respondent was the applicant. The appeal was noted late and
the
appellant applied for condonation as is required by the Uniform rules
of court.
[2]
The respondent and the appellant are residents of the M[….]
E[….] Country
Club Estate1 (the estate). The respondent is the
owner of and resides in unit [….], while the appellant resides
in unit
[….], which is owned by his wife. The units are
registered in terms of the
Sectional Titles Act 95 of 1986
. There are
seven units in the estate. There are no exclusive use areas, and the
land surrounding the units is common property.
The respondent has
lived in the estate since March 2014 while the appellant moved into
the estate during February 2015.
[3]
On 15 October 2019, the respondent filed an application in terms of s
3(2) of the
Act. In that application, she contended that the court
was required to urgently consider the matter since the appellant was
very
aggressive in his interaction with her, and he seemed to be
constantly watching her every move when she was outside her unit, the

appellant having installed surveillance cameras. His conduct bordered
on obsession. Secondly, that the appellant interfered in
her affairs,
especially on the common property, when he had no reason to do so.
Lastly, that the appellant behaved very angry when
he approaches her
and she was afraid that his verbal and physical threats would
escalate into violence which would result in grievous
bodily harm to
her.
[4]
In opposing the protection order, the appellant contended that the
respondent’s
application was nothing but delayed revenge since
he and his wife had supported the respondent’s neighbour, Mrs
Naesham,
when she brought a similar application against her (the
respondent), and a consent order was taken with the respondent
agreeing
not to commit acts of harassment against Mrs Naesham. The
appellant accordingly denied ever threatening to assault or ever
intimidating
the respondent. He contended, as shall appear below,
that the respondent was never afraid of him and that this is apparent
from
her failure to take any legal steps prior to October 2019.
Further, that had the respondent felt that he was acting contrary to

law, she would have taken immediate action considering the legal
education in her family.
[5]
The relief the respondent sought from the Verulam Magistrates’
Court was that
the appellant be prohibited from:
(a)
Engaging in or attempting to engage in harassment of her;
(b)
Engaging in or attempting to engage in harassment of a related
person;
(c)
Enlisting the help of other persons to engage in or attempting to
engage
in harassment; and
(d)
Communicating in any of the following acts:
(i)
verbal or written communication with the
complainant;
(ii)
confronting or interacting with the complainant in person; and
(iii)
engaging in physical violence, or threats of violence, verbal abuse
and written abuse (especially
through electronic means).
The
Protection Order
[6]
According to the respondent, the harassment started during 2015, when
she requested
that the appellant and his wife prune the roses planted
in the common property as they were overhanging into the road, which
provided
access to her house. The request was declined. Since then
interaction between the respondent and the appellant and his wife
became
strained.
[7]
In 2016, the respondent reversed into the driveway adjacent to unit
[....] and the
appellant and his wife took exception to this. The
appellant averred that the respondent did not request either himself
or his
wife to prune the roses and that she unilaterally cut them.
Her conduct was contrary to the estate rules, which required a
request
for the pruning of the roses be sent to the estate
management, which would arrange with its gardening service to attend
to this.
The roses were the responsibility of the appellant’s
wife for some nine years as she had requested to plant them. It
appears
she had requested to plant them and was given approval by a
previous estate manager.
[8]
The estate rules provide that no plants are to hang over the road
kerb. However, this
happened throughout the scheme but only the roses
seemed to have been a problem. According to the appellant, the
respondent drove
a small vehicle and the overhanging roses were not a
problem to her. Therefore, cutting the roses herself without consent
was purely
vindictive. He denied that his wife refused to prune the
roses and contended that the respondent’s husband, at a meeting
in the street, requested the pruning. The respondent was not present
at that meeting. She only made a single request to the appellant’s

wife in four years while she had been cutting the roses.
[9]
On 22 December 2016, the appellant drove his car into a driveway
adjacent to unit
[....], alighted from the vehicle and banged on the
front door of the respondent’s unit. When the respondent opened
her front
door, the appellant who, according to her, was in an
aggressive state of mind confronted her. He shouted the words ‘common

property’, and said he was leaving his vehicle there. The
respondent told him to go ahead as she would do the same. The
appellant’s wife came out and defused the situation. The
appellant’s conduct was according to the respondent physically

threatening and amounted to verbal abuse.
[10]
As regards this issue, the appellant contended that during December
2016, the respondent reversed
into a driveway adjacent to unit
[....], drove over the grass with irrigation pipes underneath and
damaged the piping and pop-up
sprinkler. The appellant’s wife
witnessed this and sent an email to the respondent requesting
considerate driving. In the
evening, the respondent knocked at their
door and took issue with the appellant’s wife sending an email
instead of approaching
her at her home. She then told the appellant’s
wife to have a fence around the irrigation system, which is not
permitted,
by the estate. The respondent was shouting that she owned
a share in the common property and had a right to drive in the
driveway.
The tirade took place for approximately 25 minutes and when
the respondent left, the appellant’s wife was shocked by the
attack.
[11]
The appellant noted that his wife was upset and decided to drive his
vehicle into the driveway
adjacent to unit [....], parked it there,
knocked at the respondent’s door and told her that they were
all entitled to use
her driveway since it was common property. He
left the vehicle there for 15 minutes and returned to unit [....].
His wife saw the
respondent approaching in the driveway. There was an
intense argument between them and the respondent but there was no
physical
threat or verbal abuse. The conversation continued and the
appellant left the respondent and his wife talking as the situation
seemed to have calmed down. He contended that the respondent’s
conduct of following him was not a sign of someone who felt

threatened.
[12]
In January 2017, the appellant and his wife made renovations to their
unit. It had been agreed
with the appellant’s wife that part of
the landscape adjacent to units [....] and [....] would be used to
facilitate the
building works to unit [....]. This included the water
irrigation pipe connected to unit [....]’s water supply and the
removal
of several plants to facilitate the erection of a shade cloth
to provide builders with adequate working space. On 18 January 2017,

the appellant entered part of the landscape to erect the shade cloth.
The respondent called estate manager to ensure compliance
with the
initial agreement. According to the respondent, this caused her
psychological harm.
[13]
The appellant denied that he unilaterally attempted to erect the
shade cloth. The builders went
on to erect the shade cloth in the
area, which was provided, but the respondent shouted at them and told
them to get out, as the
area was common property. The appellant went
and saw what happened but made no comment. He told the builder, Peter
Jafta, to continue
to erect the shade cloth. The respondent screamed
at them and told them she would set her dogs on them if they did not
leave. The
builders returned to unit [....] and advised the appellant
of the threat. They then refused to go back to work, as they were
afraid
that the respondent would release her dogs. According to the
appellant, he called the estate manager, Peter Hean (Mr Hean). On
arrival, his first words were, ‘what has she done now’.
Mr Hean went to the respondent and on his return advised that
she
demanded a site-commencing meeting. The appellant refused and told Mr
Hean that the respondent had no right to demand anything
as the
estate who are managers of the common property approved the
alterations. Mr Hean agreed and went to tell the respondent
to stay
away.
[14]
On 11 February 2017, the appellant called the estate security
operator complaining about a vehicle
parked on the road in the
estate. The vehicle belonged to one of the occupiers of the
respondent’s property. According to
the respondent, the vehicle
was not obstructing unit [....] and she explained to the security
guard attending to the complaint
that it was parked there since the
driveway was being extended. At about 10 pm, the appellant complained
again and the respondent
had to again provide an explanation
security. The respondent contended that the complaint was made in
order to harass her. The
appellant conceded that he reported the
nonchalant parking by the respondent since her family, their tenant
and the tenant’s
visitors parked inconsiderately on numerous
occasions. He denied that there were any extension works on the
driveway and said that
the vehicle was parked overnight. The vehicle
obstructed trucks which were delivering building material at his
house. At a subsequent
meeting, it was agreed that overflow parking
could take place on the road if the closest neighbour was informed.
[15]
On 11 April 2017 at approximately 1 pm, the respondent was watering
the garden on the common
property where the shade cloth was erected.
There had been no water in the area since 18 January 2017. According
to the respondent,
the appellant appeared on his side of the shade
cloth and shouted at her, calling her a stupid cow and asking her if
she was mad.
He kept repeating these words. After hearing these
words, which she perceived as incessant verbal abuse, she told him,
‘fuck
off, you stupid idiot’. He then picked up a white
conduit pipe and attempted to hit her from across the shade cloth and
she
sprayed him with water from the house in self-defence. She tried
to record this but recorded herself telling her husband that ‘that

idiot is trying to hit me with a stick’.
[16]
According to the appellant, the irrigation system was in perfect
working order and it was unnecessary
for the respondent to water the
common area with a hose. The respondent lifted the bottom part of the
shade cloth and sprayed the
freshly dug soil on his side of the shade
cloth where new pipes had been laid causing mud splatters over his
freshly painted exterior
wall and kitchen door. The painter reported
this to the appellant and he video recorded it. New tiles had also
been installed and
the grout had not yet set. Because of the
respondent’s conduct, the grouting and painting had to be
redone. The appellant
accepted that he shouted at the respondent to
stop spraying water under the shade cloth but denied using the words
mentioned by
the applicant. He also denied that he attempted to
attack her.
[17]
On 29 November 2017, the respondent arrived home at 1.45 pm and found
Mavis, an employee of Leitch
Landscapes, sweeping the driveway
adjacent to her unit. The respondent parked on the corner entrance of
the road to allow Mavis
to continue sweeping. At 2.10 pm, a security
guard arrived at her home and asked her to move her vehicle due to a
resident complaint.
The appellant’s vehicle was parked in the
driveway. The respondent explained the situation to the security
guard and moved
the vehicle as soon as Mavis finished sweeping. The
next day, Mavis was tending the garden and the respondent asked her
to tidy
the area around the wooden fence separating units [....] and
[....]. There was a wasp next to the creeper which encased the wooden

fence. Mavis said she could not work there. The respondent proceeded
to swat the nest in an attempt to dislodge it with no luck.
The noise
alerted the appellant whom she heard saying, ‘she is destroying
the fence’. According to the respondent,
once the creeper was
removed, the appellant wrote what she termed defamatory emails about
her to the estate manager and members
of the body corporate accusing
her of tearing the wooden fence.
[18]
The appellant contended that when he returned home on 29 November
2017, he found the respondent’s
vehicle parked illegally on the
corner of the road obstructing entry into the road. He believed that
this was a deliberate nuisance
as there was no reason why the
respondent could not park in her garage. As the respondent had parked
on the wrong side of the road,
facing oncoming traffic, he had to
manoeuvre several times to pass and enter his driveway. According to
the appellant, the incident
regarding Mavis occurred on 30 November
2017. He denied that there was a complaint regarding the wasp or that
the respondent cut
the creeper as it was overhanging. He said this
was apparent from the comments made by the respondent while
destroying the creeper.
The hedging was ripped off damaging the fence
in the process. There had been areas of the fence, which were damaged
by termites,
but the fence was still solid. Additionally, the estate
rules require a request to be made prior to pruning.
[19]
The respondent averred that on 17 January 2018, whilst she was
trimming the creeper, which had
overgrown, the appellant and his wife
exited their unit and the appellant took photos and videos of her.
She heard him saying he
had enough photos and they went back inside
their unit. The respondent viewed this as the appellant attempting to
intimidate her.
On 8 July 2018 at around 2 pm, the respondent went to
retrieve some concrete pavers and found a broken panel of the fence
on top
of the pavers. She picked it up, placed it on top of the
wooden fence, and carried on with what she had set out to do. Around
4
pm she was still in the garden when the appellant came out, removed
the panel and threw it onto the concrete palisade fence breaking
it
completely. She contended that while doing this, the appellant made
verbal threats and psychological abuse directed at her to
lower her
reputation amongst the residents.
[20]
The appellant conceded to taking photographs of the respondent as she
was breaking the fence
and not trimming the creeper. According to
him, the creeper had been completely removed on 30 November 2017. The
appellant’s
wife asked him to take more photos, which request
he declined as he had collected enough to submit to the estate
management. He
had no intentions to intimidate the respondent. In
respect of the incident of 8 July 2018, the appellant averred that
the fence
provided a barrier and privacy for them. He accordingly
denied breaking it. Furthermore, the fence was not accessible to them
from
their side of the divide. He contended that the respondent
misconducted herself to cause nuisance, irritation and provocation to

illicit a response.
[21]
On 15 July 2018 at about 3 pm, the respondent went to the area of the
palisade fence and found
the broken pieces of wood, which she had
placed on top of the existing wooden fence thrown back causing
further breakage. She picked
them up and wedged them firmly between
the creeper and the existing fence. The appellant opened his patio
door and took photographs
of her. She told him not to worry and that
he could take as many photographs as he wanted as she also had
photographic evidence.
The respondent contended that the appellant’s
actions in breaking the fence panels was to intimidate her.
[22]
On 10 July 2018, the dumping of broken fence continued and the
appellant requested Leitch Landscapes
to remove them. On 15 July
2018, he took further photographs of the respondent’s continued
aggravation as she was attempting
to separate the creeper on the
appellant’s side of the fence from the fence by wedging the
slats between the fence and the
creeper. The appellant believes the
intention was always to destroy the fence and the creeper to support
her demand for a new fence.
[23]
On 23 January 2019, the respondent noticed video cameras inside the
windows of unit [....], one
facing the common property driveway
adjacent to unit [....] and two pointing in the direction of the
wooden fence. According to
the respondent, these were used to survey
her movements and to provide further reasons for the appellant to
engage in written harassment
against her. On 12 February 2019, the
appellant filed an affidavit in the Verulam Magistrates’ Court,
which the respondent
contended made a number of defamatory and false
allegations against her, and were based on unsubstantiated hearsay or
complete
fabrication. She contended that the affidavit was a further
attempt by the appellant to lower her reputation among the residents

in the scheme, which resulted in other residents bringing a
scandalous and vexatious application in the Verulam Magistrates’

Court.
[24]
According to the appellant, the cameras were installed for security
reasons as there were security
issues in the bordering factories. As
the appellant travelled to African countries for a week at a time,
the cameras were installed
for his wife’s safety. It was purely
coincidental that the cameras captured the respondent driving into
their driveway. The
cameras recorded the respondent driving over, and
damaging the appellant’s irrigation system. They lodged a
formal complaint
against her and asked the estate management to
instruct her to desist from such malicious conduct. The appellant
stated that the
cameras remained installed as there had been two
breaches to the perimeter fence and they did not feel safe. As
regards 12 February
2019, the appellant submitted that Mrs Naesham
had requested the affidavit wherein he set out the interactions he
and his wife
had with the respondent. The appellant and his wife both
filed affidavits.
[25]
On 13 June 2019, the respondent arrived home at 1.36 pm and the
appellant’s vehicle was
‘overhanging’ the edge of
the driveway-adjoining unit [....]. The respondent suspected that
this was a set up. She
decided to enter that driveway to investigate
if she was being video recorded. She noticed the garage at unit
[....] was empty
and according to her, this confirmed her suspicion.
She took photographs of the position the vehicle was parked as the
left rear
was protruding into the road. She reversed onto the
driveway, to the grass then to the driveway adjoining unit [....].
She thereafter
took photographs of an empty driveway and garage at
unit [....]. The appellant did not answer to this allegation.
[26]
The respondent contended that on 14 June 2019, the appellant wrote a
defamatory email to members
of the body corporate and the estate’s
homeowners association, and threatened to post photographs of the
respondent on the
estate’s Facebook page if he did not receive
action from them by 5 pm. The email contained a complainant by the
appellant
regarding the respondent’s conduct of continuously
driving over the lawn on a specific driveway and damaging pop-up
sprinklers
when she had other options. Following the email, the
respondent approached her attorneys to send a letter demanding the
removal
of cameras.
[27]
The appellant confirmed that he sent an email to other owners in the
estate as he believed they
had a right to know when the body
corporate property was being damaged. He contended that the letter of
demand sent to him by the
respondent’s husband, an attorney to
overshadow the main issue. The respondent deliberately drove over the
grass because
the appellant’s vehicle was in the driveway while
the driveway opposite was empty and was an easy option. The appellant
had
returned home to fetch his wallet, which he had forgotten. He
believed the letter of demand was intended to gag him from discussing

issues of the scheme with other owners and prevent him from reporting
his complaint with the association. The letter demanded the
removal
of cameras and was fully complied with.
[28]
The respondent contended that on 8 October 2019 at 8.30 am, she asked
an employee of Leitch Landscape
to remove some garden refuse she had
placed on the driveway. She then pushed a rose, which she said was
overhanging on the driveway.
The employee asked why she did that but
she did not answer and returned to her unit. At 8.35 am, she asked
the employee, who was
with the domestic worker from unit [....], why
she was ignoring her request, but the employee continued sweeping and
did not respond
to her. She then called Thobi Vezi (Ms Vezi), a
manager at Leitch Landscape, to the estate as she was having a
problem with one
of the employees.
[29]
When Ms Vezi arrived, the appellant was standing in the road with his
domestic worker looking
at the roses. Upon seeing her, the appellant
made a gesture with his face and hands indicating a mad person.
According to the respondent,
annexure ‘G ’is a photograph
showing this. A copy of that photograph was unclear and just showed
the appellant’s
hands lifted up to his face. The appellant
said, ‘these are our roses; they have nothing to do with you’.
He then turned
and walked away. She followed him recording a video on
her phone. He stopped at his door and stared at her. She then said,
‘court
order’ and he said, ‘Ye, you are not a well
woman’.
[30]
The respondent waited for Ms Vezi to come to her unit, but when she
did not arrive at 8.47am,
she went out looking for her and found her
talking to the appellant. She started the video again for her
protection, as she was
fearful that the appellant would become
violent. The appellant walked into the driveway and the respondent
went to speak to Ms
Vezi. The appellant then asked the respondent if
she was aware that everyone was laughing at her. He then told her
that since he
did not authorise her to record him, she was infringing
his privacy. The appellant’s phone rang and he left. According
to
the respondent, the appellant involved himself in a discussion
which had nothing to do with him. The respondent averred that she

kept a diary of the events in anticipation that the appellant’s
harassment would continue. She contended that the appellant
takes
every opportunity to harass her.
[31]
According to the appellant, his domestic worker told him that the
Leitch Landscape gardener,
Zandile Majozi (Ms Majozi) wanted to talk
to him about the respondent who was breaking the roses on the side of
the garage. There
had been similar reports and photographs previously
by other Leitch employees. The appellant walked to the rose bed and
Ms Majozi
showed him the stems, which the respondent broke. Ms Majozi
explained that the respondent asked her to cut the roses back, which

request she declined, as she knew there was a weekly service vendor
who maintained the roses. The appellant contended that the
respondent
had no right to order Ms Majozi to do anything to the plants as there
are estate rules regulating this.
[32]
While talking to Ms Majozi, the appellant noticed a steel plant
leaning against the electric
fence and viewed this as an attempt to
short circuit the transformer or reduce the currency. He removed it
and threw it onto the
respondent’s lawn after which she came
running out of the house with a phone in her hand taking a video. He
asked her why
she was breaking the roses as they had nothing to do
with her. He then turned to go to his house and she followed him. He
turned
and pointed to his temple and told her that ‘she wasn’t
a well person’. He went to his driveway and plugged in
his golf
cart.
[33]
The staff in the vicinity giggled and the appellant asked the
respondent if she was aware that
people were laughing at her. He also
told her that he did not approve the video and that she was
infringing on his privacy. She
continued recording the video and he
told her that she was not well. He moved away from the respondent
into the house to phone
the estate manager, Mr Pregs. When Mr Pregs
arrived, the appellant asked him and Ms Vezi, to discuss the incident
at his home.
The appellant told Pregs that this harassment had to
stop and that the respondent’s behaviour was getting out of
hand. Pregs
assured him that he would take it up with the body
corporate.
[34]
According to the appellant, on 23 October 2019, he was washing his
vehicle in the driveway. The
respondent drove straight there despite
another driveway being completely empty. He contended that this
showed the fictitious and
malicious nature of the allegation by the
respondent after serving him with a temporary protection order, of
his alleged violent
behaviour. He averred that it is inconceivable
for a legitimate victim of violence to seek out close proximity of
their alleged
abuser. The appellant contended that he, his wife and
other people in the estate have complained of the respondent’s
continued
harassment. He averred that the application to court was
unnecessary and was constructed by the respondent. In order to avoid
abuse
of court, they had referred their complaint to the Community
Scheme Ombud Service (the CSOS) in accordance with the estate rules.
The
impugned judgment
[35]
Having considered the facts as set out above, the judgment of the
court a quo delivered on 5
December 2019 confirmed the interim order
granted on 14 October 2019 and ordered the final protection order,
which expires on 5
December 2024. The court found that the estate
management rules adequately cater for the regulation of conduct of
occupiers of
the units whether as owners or visitors. In addition,
that there is a provision for respect of all members and unreasonable
nuisance
is strictly prohibited. The court a quo held that the
respondent (the applicant before it) was entitled to approach it for
protection
from harm under the Act.
[36]
Pursuant to a request for reasons by the appellant, the court a quo
issued reasons on 17 December
2019. These were said to be in addition
to reasons already given on 5 December 2019. The court a quo stated
that the Act refers
to a broad concept of harm and that conduct need
not be accompanied by violence. Secondly, that the respondent alleged
15 incidents
of harassment over a period of three years and the
appellant agreed to 13 of the 15 incidents having occurred. Lastly,
the court
a quo stated that the estate conduct rules have to be
followed by all persons living in the estate and are intended to
protect
a high quality lifestyle. The court a quo found that the
appellant violated these rules and the respondent was entitled to
seek
protection. There was no order as to costs as the court a quo
did not find the appellant’s opposition frivolous or vexatious.
Condonation
for failure to timeously prosecute appeal
The
degree of lateness
[37]
Rule 50(1) of the Uniform Rules of Court provides that an appeal
against the decision of a magistrate
must be prosecuted within 60
days after the noting of an appeal. Thereafter,  in terms of
Uniform rule 50(4)
(a)
, the appellant must before the expiry of
40 days after noting the appeal, apply to the registrar in writing
and on notice to all
parties for a date for the hearing of the
appeal. The appellant must, as provided in Uniform rule 50(7)
(a)
,
provide a record of appeal simultaneously with the lodgement of the
application for dates.
[38]
The time periods above commence after the appeal has been noted,
which is done in terms of Magistrates’
courts rule 51(3).  As
provided by Magistrates’ courts rule 51(3), an appeal must be
noted within 20 days of delivery
of judgment. The 20-day period is
calculated from the date of judgment or within 20 days of receipt of
written reasons for the
judgment, whichever is the longer period. It
has already been stated that the reasons for judgment were received
on 17 December
2019. The appellant contends that as at 17 February
2020, neither the appellant nor his attorneys had not received the
written
reasons. On receiving the reasons, the appellant endeavoured
to serve the notice of appeal within the 20-day period, being 11
March
2020.
[39]
Having served an electronic copy of the notice of appeal, an attempt
was made to serve a hard
copy on the court a quo. However, Ms
Anderson was advised by her correspondent attorneys that the
magistrate refused to accept
physical service as there was no
security filed. Thereafter, national lockdown came into effect and
physical service could not
be effected. Consequently, the appeal was
only noted on 1 December 2020, which meant that the appeal was noted
264 days out of
time.
[40]
The respondent contends that prior to attempting to deliver a notice
of appeal; the appellant’s
attorneys should have arranged to
issue and lodge a bond of security or deposited cash with the clerk
of court. Alternatively,
they could have delivered the security
simultaneously with the notice of appeal and that there is no
justification as to why it
took the appellant’s attorneys a
period of about ten months to provide security.
[41]
Accordingly, the respondent contends that the appellant’s
attorneys failed to exercise
the necessary care and skill to ensure
that security was furnished timeously, and in so doing allowed a
significant amount of time
to pass. The respondent contends further
that the noting of an appeal could have taken place at a much earlier
date had the appellant’s
attorneys exercised the necessary
diligence. She accordingly submitted that the court should not
condone the subsequent expiry
of the 60 days within which the
appellant was afforded to prosecute the appeal in terms of Uniform
rule 50(1).
The
explanation for the lateness
[42]
Lauren Marion Anderson (Ms Anderson), the appellant’s legal
practitioner and the deponent
to the appellant’s affidavit in
support of the condonation application, alleges that the appellant’s
failure to comply
with the stipulated time period was not wilful and
that there was good cause for the lateness in prosecuting the appeal.
[43]
According to her, the delay was caused by serious events which led to
the ultimate failure to
meet the time periods in terms of the rules,
these being:
(a)
That security was required and the magistrates’ court refused
to accept
service;
(b)
There was a national lockdown closing the courts and attorneys’
offices;
and
(c)
She was absent from her office for a period of ten weeks, from 22 May
to 20 July 2020, due to her late father taking ill and she was
compelled to travel to St Francis Bay in the Eastern Cape to care
for
him.
[44]
Ms Anderson’s father passed away on 3 July 2020. Following the
memorial service, she had
to attend to other administrative issues
and only returned to her office on 20 July 2020. She was physically
exhausted having cared
for her father alone for eight weeks. It was
difficult to obtain nursing care due to the lockdown and travel
restrictions. She
also contends that she was mentally exhausted and
was grieving. Her own health deteriorated and she was diagnosed with
thrombosis
in her left foot and was hospitalised on two occasions, on
20 September 2020 for two days, and on 27 September 2020 for four
days.
She was on bed rest for a week thereafter. She does not say
when it is that she returned to her office but it can be concluded
that it was sometime during early October 2020.
[45]
Upon her return to office, Ms Anderson states that the noting of the
appeal was not forefront
in her mind and it only came to her
attention on 26 November 2020 when a colleague asked her about it.
She immediately took the
necessary steps to note the appeal. She
states further, that in addition to her personal issues, the record,
being the transcript
of proceedings, was requested from Sneller
Recordings and was not received by her office. Had it been received
it would have served
as an urgent reminder to attend to the matter.
It appears Sneller Recordings had emailed the record to an incorrect
email address.
No time frames or dates have been provided in respect
of the role attributed to Sneller Recordings. She states that any
fault lies
solely at her feet and not those of the appellant.
[46]
Ms Anderson states that while the delay in prosecuting the appeal
appears significant, given
the problems experienced, the appellant
has provided an acceptable explanation for the delay and has shown
that everything that
could possibly have been done to ensure that the
matter moved forward was and has now been done. The lateness must
also be considered
in light of the circumstances within which the
appellant’s attorney found herself.
[47]
According to the respondent, the delay was because of the appellant’s
attorney’s
failure to anticipate and adhere to the magistrates’
courts rules timeously with regard to the furnishing of security,
which
resulted in the noting of appeal being beyond the 20 day period
allowed for in Magistrates’ courts rule 51(3). The respondent

contends that notwithstanding the declaration of the national state
of disaster on 15 March 2020, the appellant could have taken
steps to
furnish security and note the appeal within a period far less than
ten months.
[48]
The respondent’s counsel, Mr
Leppan
conceded that the
national lockdown prevented the appellant’s attorneys from
performing their duties. He contended, however,
that the restrictions
were in place between 26 March 2020 and 30 April 2020. The
restrictions were relaxed by the Minister of Justice
and
Constitutional Development with the commencement of alert level 4 on
1 May 2020 in terms of reg 4 of the regulations published
in GN
R4898,
GG
43268. During that period essential services could
be performed, which included essential functioning of courts and
legal practitioners,
amongst others. The 4 May 2020, being a Monday
was the first working day when the appellant’s attorneys should
have tried
note the appeal.
[49]
Mr
Leppan
submitted that Ms Anderson failed to apply the
necessary care to ensure compliance with the rules of court at the
first opportune
moment. Ms Anderson failed to exercise the necessary
skill expected of a legal practitioner. Consequently, the respondent
submitted
that this court should not condone such conduct. He
submitted further that the respondent sympathises with Ms Anderson on
the passing
of her father and her being ill thereafter. However, that
the continuing delay of about eight months, from 1 May 2020 to 1
December
2020, was unjustified especially since Ms Anderson practices
in a firm of attorneys. Greater care have been taken to ensure that

the appellant’s file had been attended to while Ms Anderson had
taken a leave of absence. The respondent contends that it
would
appear that the appellant’s file was simply allowed to go
dormant and not attended to until 26 November 2020.
[50]
The respondent contends further that the problems in procuring the
record should not have affected
the furnishing of security and the
noting of the appeal because they are not contingent on the appellant
securing the record. There
could still have been compliance. He
submitted that in any event, the appellant’s attorneys should
have investigated the
delay with Sneller Recordings long before Ms
Anderson returned to work. The salient issue that this court must
determine is whether
the delay of ten months was attributable to an
unanticipated external factor(s), which prevented the appellant’s
attorneys
from carrying out their duties, or through their own
conduct, was justifiable. The filing of security and the noting of
the appeal
could have delivered them simultaneously. It was submitted
that the appellant’s attorneys’ conduct of the
appellant’s
attorneys could only be described as gross
negligence.
[51]
The respondent contends that the fact that Ms Anderson had taken ill
and suffered bereavement
are insufficient reasons to excuse the
continuing delay of about eight months from 1 May 2020 to 1 December
2020. According to
the respondent, this is because the delay was
caused by the appellant’s attorneys’ staff who failed to
ensure that
the file was attended to during Ms Anderson’s
absence. In addition, the appellant’s attorneys are a law firm
with several
attorneys who should have taken greater care to ensure
that the appellant’s file was being attended to in Ms
Anderson’s
absence. It, however, appears that the appellant’s
file was allowed to go dormant and was not attended to until 26
November
2020. The respondent contends that this shows a failure on
the part of the appellant’s attorneys to exercise the necessary

care and skill expected of a legal practitioner.
[52]
As regards the record, the respondent contends that the problem in
procuring it should not have
affected the time taken to furnish
security and the noting of the appeal since these steps/actions could
have still been done even
in the absence of the record.
[53]
The appellant’s counsel Mr
Shapiro
submitted that while
the appeal was prosecuted out of the time, the notice of appeal was
taken into court for filing on 11 March
2020 but that the magistrate
had refused to accept it. Further, that the appellant’s
attorney expressed not only the impact
of the national lockdown but
also a series of tragic personal events in her own life, which led to
the delay in formally noting
the appeal on 1 December 2020. He
submitted that it was untrue that there was any gross negligence on
the attorney’s conduct.
[57]
It was submitted by Mr
Shapiro
that there was no suggestion
that the appellant took any steps to delay the appeal or was
complicit in the failure to note it timeously
nor that the appellant
would have known what steps were required after the notice was
delivered. To the contrary, the appellant’s
instruction led to
the drafting of the notice of appeal and timeous attendance at the
magistrates’ court on 11 March 2020.
Mr
Shapiro
further
submitted that this was not a matter of simple lack of diligence or
inaptitude and that a full explanation has been given.
Further, that
whilst the delay is 264 days, this should not in the circumstances
bar the appellant from being able to prosecute
the appeal.
[58]
Mr
Leppan
argued that the appellant was dilatory in pursuing
this matter on appeal, which has resulted in an extraordinary delay.
Also, that
ordinarily the appeal court is slow to shut the door to a
bone fide would be appellant. Notwithstanding the intrusion of
COVID19,
the extraordinary delay in prosecuting the appeal also
brings to the fore the failures by the appellant to comply with
Uniform
rule 50(1), Magistrates’ courts rules 51(3) and 51(4)
and
s 84
of the
Magistrates’ Courts Act 32 of 1944
. Regard must
also be given to the appellant’s attorney’s failure to
take advantage of the relaxation of civil law proceedings
after May
2020 as set out in
GG
43628.
[59]
Mr
Leppan
submitted further that whilst the appellant’s
legal representative’s personal circumstances may illicit a
sympathetic
response, it does not satisfactorily explain the delay
after 20 July 2020. Further, that condonation is not merely for the
asking
and while he submitted that the affidavit does provide some
explanation for the initial delay, it does not excuse the delay after

20 July 2020. He submitted that the appellant’s attorney was
not a sole practitioner and the further delay of nearly six
months is
inexcusable. Notably too is the absence of any mention of the
appellant himself querying the delay. In this regard, reliance
was
placed on
Uitenhage Transitional Local Council v South African
Revenue Service
2004 (1) SA 292
(SCA) at
para 6. This consideration coupled with the appellant’s
bleak prospects of success on appeal should close the appeal court

door to the appellant.
Prospects
of success
[60]
As regards the prospects of success, Ms Anderson states that these
have been set out in the notice
of appeal, which are briefly as
follows:
(a)
That the court a quo did not give due consideration to a number of
factors including the appellant’s
version of events, and
accepted the respondent’s version of events uncritically and
without evaluating the probabilities
inherent in her version;
(b)
The court a quo failed to consider the respondent’s own conduct
and role
in the events alleged;
(c)
The court a quo failed to conclude on the probabilities that the
appellant
neither caused harm nor inspired a reasonable belief of
harm;
(d)
The court a quo failed to conclude that the respondent’s
application was
vindictive;
(e)
The court a quo failed to conclude that the appellant had not
committed any
act of harassment as defined in s 1 of the Act;
(f)
The court a quo failed to conclude that the respondent did not fear

the appellant given the length of time over which the alleged
incidents occurred; and
(g)
The court a quo erred in concluding that the appellant had violated
estate conduct
rules, which in turn justified an order in favour with
the respondent.
Prejudice
[61]Anderson
averred that there was no prejudice suffered by the respondent since
she has a final order in place and has not had
any reason to act
further in the matter. The appellant on the other hand, if not
granted condonation due to the delay, will suffer
prejudice, as he
will be denied the right to have the appeal determined. It was
contended that the prejudice to the appellant far
outweighs any
prejudice suffered by the respondent.
The
importance of the matter
[62]
According to Ms Anderson, this case involves a matter, which is
important to the appellant who
has, until this matter is ventilated,
a final order that infringes his rights. In addition, that it is in
the interests of justice
that condonation be granted since the
appellant did not create the lockdown or the personal circumstances
of his attorney. It was
submitted that the appellant demonstrated
good grounds for the granting of condonation for the late filing and
prosecuting of the
appeal.
[63]
The respondent contends that there was clear negligence displayed by
the appellant’s legal
representative in failing to prosecute
the appeal timeously and failing to prepare the record timeously.
There are no prospects
of success and the appellant has put up an
incomplete record. The respondent contends further that the
appellant’s notice
headed ‘application for condonation’
is defective as it does not comply with the provisions of Uniform
rule 6(5)
(b)
(iii) by not providing a date by which the
respondent must notify the appellant of an intention to oppose. Also,
that there is no
power of attorney filed authorising the prosecution
of the appeal as required by Uniform rule 7(2) and (3).
Submissions
by counsel
[64]
It was submitted by Mr
Shapiro
that the appellant has very
strong prospects success on appeal. Further, that his case is
important and that it set precedent that
the court can find a person
guilty of harassment based on the subjective views of a complainant
in circumstances where such conduct
is simply objectionable or
irritating to a complainant. It was submitted that the court needed
to determine the objective standard
required before conduct is deemed
harassment. It was argued, that there are linked and serious
consequences for the person who
has been found by the court to be
guilty of a type of serious and almost criminal conduct that
constitutes a breach of the Act,
justifying a final protection order
being granted against him and the concomitant authorisation of a
warrant of arrest.
[65]
It was further submitted that the late delivery and prosecution of
the appeal did not prejudice
the respondent since she is in
possession of an enforceable protection order that is valid until
2024. It was accordingly argued
that the appellant has shown
sufficient cause for this court to condone the late delivery and
prosecution of the appeal. However,
that should the court not be
inclined to grant condonation as in the
Uitenhage
case, the
appellant submitted that the court may wish to consider the prospects
of success before deciding the issue of condonation.
In this regard,
it was argued that there were compelling reasons to hear the appeal.
[66]
Counsel for the respondent submitted that the learned magistrate
considered the matter and that
there was no evidence to support the
contention that he had not critically evaluated all of the evidence
and their probabilities.
The respondent submitted that the issue to
be considered is whether the appellant’s conduct constitute
harassment as defined
in s 1 of the Act. In addition, to determine
whether the appellant had the intention or ought to have known that
his misconduct
would cause physical, economic, mental or
psychological harm to the respondent, and not whether the respondent
was at fault or
not. The respondent contended that the evidence
clearly shows a course of conduct embarked upon by the appellant,
which constitutes
harassment. In addition, that it was demonstrated
in her evidence that the appellant’s actions were an attempt to
physically
harm her and caused her mental and psychological harm.
[67]
The respondent counsel submitted that the evidence does not show that
she played a specific role
or that her conduct was inflammatory. The
question to be answered was whether the appellant’s conduct
contravened the provisions
of the Act. He submitted further that
there is no evidence to support the assertion that the respondent
brought the application
in the court a quo as an act of
vindictiveness. According to her, the evidence shows a cause of
conduct by the appellant over a
prolonged period of time demonstrable
from the matrix of the chronology of events, which culminated on 8
October 2019 when the
appellant accosted her both verbally and with
the use of physical signs. This incident occurred some months after
the application
before the court a quo by the neighbour, which was
brought against the respondent.
[68]
According to the respondent’s counsel, the evidence shows that
the appellant’s acts
constitute harassment as defined in s 1 of
the Act. Accordingly, the court a quo was correct to decide that
conduct need not be
violent to constitute harassment. This is because
the appellant admitted to 13 incidents which included accosting,
watching and
communicating verbally and in writing via electronic
communication. In this regard, counsel relied on the leading case of
Mnyandu v Padayachi
2017 (1) SA 151
(KZP) where this court
decided that such conduct would amount to harassment.
[69]
The respondent counsel submitted that length of time is no indicator
of whether the appellant’s
acts caused her fear. The acts do
show cause of conduct which were intended to and did induce fear in
her. He submitted further
that they caused her mental and
psychological harm as the appellant’s behaviour induced anxiety
and anguish. He argued that
it is evident that she tried to address
these issues by referring them to the estate management without
success. The respondent’s
application was brought after the
events of 8 October 2019, as she could no longer endure the behaviour
of the appellant. It was
submitted that the court a quo considered
the estate conduct rules to determine whether the respondent was
entitled to bring the
application or whether she should have
addressed her grievance through the estate management. It was
submitted that in its decision,
the court a quo did not make its
finding based on a violation of the conduct rules.
[70]
The respondent argued that the magistrate did not err in failing to
dismiss the application but
that the granting of the final order was
made after careful consideration of the evidence and the law. It was
further argued that
the final order has provided the required relief
since she has not suffered any further harassment by the appellant.
According
to the respondent, any prejudice that may be caused to the
appellant is the fault of his attorneys and he can commence action
against
them for compensation. The respondent’s counsel
contended that this court should not offer condonation when the
conduct of
the appellant’s attorneys demonstrates gross
negligence in bringing the appeal and there is a slim prospect of
success. She
contended that there are no good grounds for condonation
nor do the interests of justice call for condonation to be granted.
[71]
The respondent accordingly submitted that the court a quo dismissed
the application for condonation
with costs for the following reasons:
(a)
That the conduct of the appellant’s attorneys demonstrates
gross negligence;
and
(b)
That there are no reasonable prospects of success for the appeal
succeeding.
Analysis
[72]
Where a specific period is prescribed by the rules of court and there
is non-compliance with
the said period, it is peremptory that
condonation be applied for. It is trite that in condonation
applications where the delay
is excessive, a full, detailed and
accurate account of the cause for the delay must be furnished (see
Darries v Sheriff, Magistrate’s
Court, Wynberg, and another
1998 (3)
SA 34
at 40H-J;
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) para 6, and
Dengetenge
Holdings (Pty) Ltd v Southern Sphere and Mining Development Company
Limited and others
[2013] 2 All SA
251
(SCA) para 11).
[73]
In
Darries
at 41A, the court held that it cannot be assumed
that where the non-compliance was entirely due to the negligence of
the appellant’s
attorney that condonation would be granted. In
Saloojee and another, NNO v Minister of Community Development
1965
(2) SA 135
(A) at 141B-G the court
stated as follows:
‘
In
Regal
v African Superslate (Pty.) Ltd.
,
1962
(3) SA 18
(AD)
at
p. 23, also, this Court came to the conclusion that the delay was
due entirely to the neglect of the applicant's attorney,
and
held that the attorney's neglect should not, in the circumstances of
the case, debar the applicant, who was himself in no way
to blame,
from relief. I should point out, however, that it has not at any time
been held that condonation will not in any circumstances
be withheld
if the blame lies with the attorney. There is a limit beyond which a
litigant cannot escape the results of his attorney's
lack of
diligence or the insufficiency of the explanation tendered. To hold
otherwise might have a disastrous effect upon the observance
of the
Rules of this Court. Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. In fact this Court
has lately been burdened with an undue and
increasing number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to neglect
on the part of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there
is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from
the normal consequences of such a
relationship, no matter what the circumstances of the failure are.
(Cf.
Hepworths
Ltd v Thornloe and Clarkson Ltd.
,
1922 T.P.D. 336
;
Kingsborough
Town Council v Thirlwell and Another
,
1957
(4) SA 533
(N)
).
A litigant, moreover, who knows, as the applicants did, that
the prescribed period has elapsed and that an application for

condonation is necessary, is not entitled to hand over the matter to
his attorney and then wash his hands of it. If, as here, the
stage is
reached where it must become obvious also to a layman that there is a
protracted delay, he cannot sit passively by, without
so much as
directing any reminder or enquiry to his attorney (cf.
Regal
v African Superslate (Pty.) Ltd., supra
at
p. 23
i.f.)
and
expect to be exonerated of all blame; and if, as here, the
explanation offered to this Court is patently insufficient,
he cannot
be heard to claim that the insufficiency should be overlooked merely
because he has left the matter entirely in the hands
of his attorney.
If he relies upon the ineptitude or remissness of his own attorney,
he should at least explain that none of
it is to be imputed to
himself. That has not been done in this case. In these circumstances
I would find it difficult to justify
condonation unless there are
strong prospects of success (
Melane
v Santam Insurance Co. Ltd.
,
1962
(4) SA 531
(AD)
at
p. 532).’
[74]
Further, in
Darries
at 41B-E, the court stated that the
appellant’s prospects of success are an important consideration
in a condonation application
although not decisive. The prospects of
success are but one of the relevant considerations in the exercise of
the court’s
discretion, unless the cumulative effect of other
factors render such application unworthy of consideration. Where
non-observance
of the rules has been flagrant and gross an
application for condonation should not be granted, whatever the
prospects of success
may be (see
Blumenthal and another v Thomson
NO and another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) at 121I-122B).
[75]
In
Waverly Blankets Ltd v Ndima and others
[1999] 11 BLLR 1143
(LAC) at 1145I-J, the court held that where the delay is excessive
and the explanation is unreasonable and unacceptable, the court
may
refuse condonation without considering the prospects of success.
Further, that where the excessive delay is explained, it may
not
justify the granting of condonation, especially if the delay is
attributable to the litigant’s representative (see Zondo
J in
Grootboom v National Prosecuting Authority and another
2014
(2) SA 68
(CC) para 51). Regard must be had to the importance of the
issue raised in the matter. In para 59 of
Grootboom
, Zondo J
found that what needed to be decided in respect of condonation was
whether the respondent had reasonable prospects of
success, which is
an important consideration in deciding whether to grant or refuse
condonation.
[76]
In para 22 of
Grootboom
, Bosielo AJ stated that the standard
for considering an application for condonation is the interests of
justice, which includes
the nature of the relief sought, the extent
and cause of the delay and the prospects of success (as set out in
Brummer v Gorfil Brothers Investments (Pty) Ltd and others
[2000] ZACC 3
;
2000 (2) SA 837
(CC) and
Van Wyk v Unitas Hospital and another
(Open Democratic Advice Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC)). The ultimate determination of the interests of justice must
reflect due regard to all relevant factors but is not limited
to
them. The particular circumstances of each case determine which of
these factors are relevant.
[77]
At paras 34 and 35 of
Grootboom
, Bosielo AJ stated that the
impression created in the matter was that ‘we have reached a
stage where litigants and lawyers
disregard the rules and directions
issued by the court with monotonous regularity’ and with flimsy
or no explanations causing
prejudice to the courts. He stated that a
message must be sent to litigants that the rules of court cannot be
disregarded with
impunity. As regards the exercise of judicial
discretion in determining a condonation application, he stated that
it involved a
value judgment and is based on the facts of each case.
The court refused the condonation for application where the delay was
30
days due to the absence of an explanation for the delay.
[78]
In
Tshivhase Royal Council and another v Tshivhase and another;
Tshivhase and another v Tshivhase and another
[1992] ZASCA 185
;
1992 (4) SA 852
(A)
at 860C-G, the court found the failure to lodge proper security
timeously (with a delay of eight months) had been remedied.
It found
that the appellants had at all times demonstrated a firm intention to
appeal and that there was no real prejudice to the
respondents. The
court found further that the outcome of the appeal was of vital
importance not only to the appellants, but also
to the tribe as a
whole. It seemed unfortunate that the issue of chieftaincy would be
determined by the non-compliance with the
rules. Accordingly, the
court ruled that it had to consider the merits of the case to
determine the prospects of success.
[79]
The courts have raised concerns about the impact that non-compliance
with time frames has on
the interests of justice (see
Mohlomi v
Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) at para 11;
Brümmer
v Minister for Social Development and others
2009 (6) SA 323
(CC)
para 64 and
Road Accident Fund and another v Mdeyide
2011 (2)
SA 26
(CC) para 2).
[80]
The extent of delay of 264 days is extremely excessive. The
explanation tendered falls short
since the only reasonable
explanation relates to the period when Ms Anderson was caring for her
late father being between 22 May
and 20 July 2020, and to the six
days when she was hospitalised in September 2020. The explanation
provided accordingly accounts
for 64 days. In my view, there is no
explanation provided in respect of the other 200 days since,
according to Ms Anderson, the
papers in the matter were ready to be
filed from March 2020. The respondent is correct that all relevant
documents should have
been delivered by 4 May 2020 following the
lifting of the hard lockdown.
[81]
While Ms Anderson’s explanation in respect of the 64 days is
reasonable, that does not
explain why other practitioners in the firm
could not provide the necessary attention required in the matter. As
correctly argued
by the respondent, Ms Anderson was not a sole
practitioner. It is apparent from the papers that the appellant’s
attorneys
failed to exercise the necessary care and skill expected of
them. It was reasonable for the magistrate to refuse delivery of the

notice of appeal since no security was provided. There is no
explanation provided as to why security was not provided sooner than

1 December 2020 save for Ms Anderson’s absence. The issue of
the availability of records had nothing to do with and could
not have
been an impediment to the furnishing of security.
[82]
As was argued by the respondent, the appellant provided no
explanation as to what actions he
had taken to enquire on the matter.
While it is accepted that he is not a legal practitioner, according
to him, the order that
was made by the court a quo was serious to him
and had serious implications. He, however, sat back and took no
action for a period
of approximately a year. If the matter was a
serious to him, like it is suggested by him and his counsel, he would
have made enquiries
and followed up on the appeal with his attorneys.
[83]
In considering this condonation application, much turns on the
prospects of success. The respondent’s
counsel submitted that
the appellant has bleak prospects of success while the appellant
argues that he does. In determining whether
the appellant has
reasonable prospects of success, it is proper that the merits of the
matter are considered.
[84]
It is trite that for this court to interfere with the judgment of the
court a quo, it must find
that the decision was capricious or based
on wrong principles, that there was a failure to bring an unbiased
judgment to bear or
that there was a failure by the court a quo to
act for substantial reasons. See
Western Cape Minister on
Education v Governing Body of Mikro Primary School
2006 (1) SA 1
(SCA).  In order to determine this, it is necessary to consider
the relevant provisions of the Act, relevant legal authority
and the
application thereof.
[85]
As set out above, the application before the court a quo was in terms
of the Protection from
Harassment Act. Section 1 of the Act, the
definition section, defines harassment as:
‘
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;
(b)
amounts to sexual harassment of the complainant or a related person;’
[86]
Section 1 of the Act also defines harm as ‘any mental,
psychological, physical or economic
harm’.
[87]
In terms of s 3 of the Act, when considering an application in terms
of this Act, the court may
consider all relevant evidence, including
oral evidence or evidence on affidavit. Where the court is satisfied
that there is prima
facie evidence that:
(a)
The respondent is or has engaged in harassment;
(b)
Harm is being or may be suffered by the complainant or a related
person as a result of the
respondent’s conduct if a protection
order is not immediately issued;
(c)
The protection to be accorded by the interim protection order is
likely not to be achieved
if prior notice of the application is given
to the respondent.
it
must grant an interim protection order with the return date despite
the respondent not being served. Section 9(4) of the Act
provides
that on the return date, the court is to consider all the relevant
evidence and issue a final protection order if it finds
on a balance
of probabilities that the respondent has engaged or is engaging in
harassment.
[88]
Section 9(5) of the Act directs the court on what it must consider
when determining whether the
conduct of the respondent is
unreasonable and provides that in addition to any other factor, the
court must take into account whether
such conduct was engaged in:
(a)
For purposes of detecting or preventing an offence;
(b)
To reveal a threat to public safety or the environment;
(c)
To reveal that an undue advantage is
being or was being given to a person in a competitive bidding

process; or
(d)
To comply with a legal duty.
[89]
All the relevant facts are before this court and we are of the view
that the interest of justice
required that they be considered. We
accordingly venture into an exercise of considering them. The court a
quo found that of the
15 purported acts of harassment the appellant
agreed to 13 incidents having occurred. It is not clear what is meant
that the appellant
‘agreed’ to the incidents having
occurred. The respondent, in her complaint, detailed the events and
dates when such
events occurred. What the appellant did in his
defence, which was proper and reasonable, was to file an answer to
each of those
events as set out by the respondent. There is no
admission by the appellant that any of those incidents amounted to
harassment.
On the contrary, what the appellant did in his answering
affidavit was to provide evidence to support his version that he had
not
harassed the respondent and to present the respondent as the
aggressor.
[90]
It is evident from the record that the relationship between appellant
and the respondent is acrimonious.
The issue is whether such acrimony
can result in one of the parties succeeding in a claim for
harassment. In answering this question,
sight must not be lost of the
fact that legislature, in enacting the Act, gave due consideration to
the issues and set out what
the purpose of the Act is and
circumstances when the court would find that there was contravention.
In order to arrive at a conclusion
that there was a contravention, it
is my view that it is necessary to consider the incidents complained
of, an exercise, which
the court a quo as the court determining the
facts, should have done.
[91]
As regards the incident of 2015 regarding the pruning of roses, and
that of 2016 when the respondent
drove into the driveway adjacent to
unit [....], being the first purported incident, it is clear that the
estate rules regulate
the pruning issue. It appears, having
considered the version of both parties that the respondent was the
aggressor who took it
upon herself to prune the roses when there are
estate rules regulating this. In respect of driving into the
driveway, it is unclear
as to the reason why the respondent avers
that the appellant and his wife took exception since there is no
suggestion that they
did anything about this. There is nothing to
suggest that there was any unreasonable conduct by the appellant that
caused harm
to the respondent and accordingly no harassment.
[92]
The next relevant incident is on 22 December 2016, when the appellant
knocked at the respondent’s
door and shouted the words ‘common
property’. It is unclear what the appellant did to suggest that
he had an aggressive
state of mind. Shouting out the words common
property, when it is a fact that the driveway is common property
cannot be said to
be verbal abuse, especially in view of the
respondent’s earlier conduct of knocking at the appellant’s
home to take
issue with his wife about the email she sent regarding
the respondent driving over their pop-up sprinklers. Despite the
intense
argument between the appellant, his wife, and the respondent,
this issue was resolved, which was a neighbourly way of dealing with

disagreements. There was no suggestion by the respondent of any harm
being caused to her and, in my view, no act of harassment.
[93]
The issue of 18 January 2017 regarding the erection of the shade
cloth was an issue discussed
with and agreed to by the estate
manager. It is unclear as to why the respondent intervened instead of
raising the issue with the
estate manager or body corporate. As the
court a quo found, the estate has rules regulating the conduct of
owners and their visitors
adequately. In instances where there is
non-compliance with these rules, parties are to seek enforcement from
the estate and not
take it upon themselves as was done by the
respondent did when she threatened the building staff. Again, she was
clearly the aggressor
and there is no evidence of any harassment
through the causing of harm by the appellant.
[94]
The issue of 11 February 2017 relates to the appellant complaining to
the estate security about
the respondent’s resident parking on
the road. The respondent suggested that the complaint was made to
harass her. The basis
for such contention is without any merit. The
appellant was entitled to complain if he was being inconvenienced.
The appellant
did not direct any communication to the respondent or
indirectly intend to harass her. He raised a genuine complaint with
the estate
management. It cannot be said on the existing facts that
his conduct was unreasonable.
[95]
The incident of 11 April 2017 was both unfortunate and unwarranted.
There are two conflicting
versions as to what transpired. It is,
however, unclear why the respondent was watering the common property,
regardless of whether
the irrigation system was working or not, as it
was not her responsibility to do so. As a result of her conduct, the
appellant’s
renovation was adversely affected. The appellant
accepts that he shouted at the respondent but denies using the words
suggested
by her. If indeed the appellant used those words, the
respondent retaliated in a similar manner.
[96]
As regards the issue of 29 November 2017, it is unclear what harm or
harassment is contended.
The respondent was parked on the wrong side
of the road. She accepts that she was parked on the road. There are
rules regulating
parking in the estate. It appears that the appellant
reported this to security. There was nothing harmful and unreasonable
about
his complaint. As regards the alleged overhanging creeper,
estate rules regulate the cutting or pruning of plants and there are

people employed for that. As to why the respondent cut the creeper,
and how the appellant’s comment that she was destroying
the
fence becomes harassment, is not apparent from the facts.
[97]
It appears the issue of the creepers and their purported trimming was
one of the contentious
issues between the appellant and the
respondent as it was a recurring theme in the incidents. When the
respondent, on her version,
again attended to it on 17 January 2018,
the appellant felt the need to take photos of her to gather evidence.
As already stated
earlier, it was unnecessary for the respondent to
have attended to the trimming since there is a landscaping company
that attends
to them and the estate rules regulate this. The
appellant denies making any verbal threats and the onus is on the
respondent to
prove these. In view of the respondent’s constant
conduct, it was reasonable for the appellant to obtain evidence to be
submitted
to the estate management who were clearly not giving the
matter the attention it required. The fence issue arose on 8 July
2018
and 15 July 2018 and the photographs were taken. This time,
according to the respondent, she told the appellant that she also had

photographic evidence. Although it is improper to take photographs
and this may in the normal course amount to some form of harassment,

both the appellant and the respondent did it. Accordingly, on the
facts of this case, it cannot be said that such conduct amounted
to
harassment.
[98]
As regards the issue of the video cameras on 23 January 2019, the
appellant provided a reasonable
explanation as to why these had to be
installed; it is unclear why the respondent would believe they were
meant for her. In respect
of the affidavit of 12 February 2019, the
appellant was requested to set out his experience with the respondent
by another aggrieved
neighbour. The matter was before court and the
respondent had opportunity to challenge its contents. How this
amounts to harassment
is not apparent from the papers. Regarding the
incident on 13 June 2019, when the appellant’s vehicle was
overhanging the
edge of the driveway, the respondent confirmed that
she took photographs. It was acceptable for her to do this, yet when
done to
her, it constitutes harassment. She then drives over the lawn
despite being aware from earlier experience that there are pop-up

sprinklers and while she had an option of using the other driveway.
[99]
In respect of the email of 14 June 2019, there is nothing therein
amounting to harassment save
for the indication of the intention to
publish photographs. The sending of an email to the estate management
cannot be said to
be harassment. The appellant was understandably
frustrated by the estate management’s failure to act. In any
event, arising
from the appellant’s email, the respondent’s
attorneys sent a letter of demand, which according to the appellant,
was
complied with.
[100]
The pruning issue came up again on 8 October 2019. When Ms Majozi,
who was working in the garden, called the appellant,
he told the
respondent that the roses had nothing to do with her, which was a
fact. During the course of this incident, the respondent
recorded a
video of the appellant, which he was unhappy about. The appellant had
did not engage further and opted to leave the
matter in the hands of
the estate management. It was unwarranted for the appellant to throw
the steel plant onto the respondent’s
lawn, but again this
cannot be classified to be harassment. The respondent was the
aggressor in this instance as she followed the
appellant to his house
when he walked away from the scene.
[101]
The final incident cited/mentioned was on 23 October 2019. The
respondent, having obtained an interim order against
the appellant,
continued with her confrontational behaviour/conduct by deliberately
driving close to the appellant whilst he was
washing his vehicle. It
appears that the appellant made numerous complaints against the
respondent, which were referred to the
estate management, yet nothing
was done.
[102]
It is necessary, arising from the above, to determine who bears the
onus of proof and whether such onus was discharged
to warrant the
granting of a final order by the court a quo. In
Mnyandu v
Padayachi
para 30, the court accepted that the onus rests on a
party seeking a protection order to prove that she is entitled to
that order,
ie that party must prove that the conduct complained of
constitutes harassment in terms of the Act. In
Pillay v Krishna
and another
1946 AD 946
at 952, the court held that the person
who bears the onus of proof will lose if she does not satisfy the
court that she is entitled
to succeed in her claim. At para 40 of
Mnyandu
, the court went on to say that the complainant must
prove on a balance of probabilities that the perpetrator knew or
ought to have
known that their conduct would cause harm to the
complainant, and that the conduct is unreasonable in the
circumstances.
[104]
At para 44 of
Mnyandu
, the court stated that the conduct
against which protection is offered by the Act should not be
construed too wide otherwise there
would be a plethora of
applications based on conduct not contemplated by the Act. An
interpretation, which is too narrow, may unduly
compromise the
objectives of the Act. The court concluded in paras 57 and 59 that an
objective test must be applied, ie a reasonable
person must think
that the course of conduct complained of amounted to harassment.
[105]
The court found in para 68 that although the definition of harassment
does not refer to a ‘cause of conduct’,
the conduct
complained of must either be repetitive and unreasonable, making it
tormenting or inculcating serious fear or distress
in the victim.
Alternatively, if it is a single act, the conduct must be
overwhelmingly oppressive such that it has similar consequences
as
the repetitive act.
[106]
The facts of this matter reveal conduct of a neighbour who is
unneighbourly. The parties live in an estate with
rules which
regulate their conduct, especially in relation to common property.
Despite this, the respondent seems to have taken
it upon herself to
do as she wished on. numerous occasions, conducting herself in a
manner, which was provoking. On several occasions,
the appellant
reported such conduct to the estate management but it appears that
his complaints were not given consideration. This
resulted in him
lodging a complaint with the CSOS. Had the estate dealt with the
matter from when it started, it is unlikely that
it would have led to
this.
[107]
As stated earlier in this judgment, the issue turns on the decision
of the court a quo. Does a reading of the
facts in the matter lead to
the conclusion that the appellant harassed the respondent? In my
view, I find that they do not. As
stated earlier, the fact that the
appellant provided a reply to all the incidents is not and cannot be
perceived as an admission
of any unreasonable conduct. The court a
quo erred in its understanding of this issue, and without considering
the merits of each
complaint and the response thereof erroneously
concluded that the appellant’s conduct constituted harassment.
[108]
It is clear from the Act that for conduct to amount to harassment it
must be harmful and must be unreasonable.
A consideration of the
facts in this matter paints a picture of the respondent continuously
provoking the appellant and his wife,
seemingly certain that the
estate management would do nothing to sanction her conduct. On
numerous occasions, the respondent went
to the appellant’s home
and confronted him or his wife. It cannot be said that there was
prima facie evidence of harassment
before the court a quo that
warranted the granting of a final order.
[109]
Nothing in the judgment of the court a quo suggests that it
considered the provisions of s 9(5) of the Act; whether
the
appellant’s conduct could objectively be viewed as
unreasonable. That being the case, it is unclear as to how the court

a quo arrived at its decision, especially taking into consideration
the facts of this matter. It clearly arrived at a wrong conclusion

and committed a patent error. I agree with the appellant that the
court a quo approached the matter on the basis that it had granted

the interim protection order and accordingly that the onus shifted on
the appellant. This was incorrect since the onus remained
with the
respondent to prove that she was entitled to a final order.
[110]
There was no evidence to show that the appellant was aware that the
respondent perceived any of his conduct as
harmful and deliberately
persisted with it. As correctly submitted by the appellant, the court
a quo confined itself to concluding
that because the respondent
contended that the events occurred that they constituted harassment.
I agree that the court a quo did
not make any assessment of the
existence or otherwise of psychological harm as contended by the
respondent and there was no evidence
to that effect. Accordingly, the
court a quo committed a material misdirection. Consequently, the
appellant has reasonable prospects
of success on the merits.
[111]
Having reached this conclusion, the question that still needs to be
answered is whether having found that the
appellant has reasonable
prospects of success on the merits, this justifies the granting of
condonation despite the excessive delays
and a thin or absent
explanation for such delay. Taking into account that there was no
evident prejudice to the respondent as she
was armed with her final
protection order, the issue of precedence, and the effect of the
final order on the appellant, I find
that the interests of justice
favour the granting of condonation.
Order
[112]
In the result I propose the following order:
(a)
The application for condonation against the late noting of the appeal
is granted.
(b)
The appeal succeeds.
(c)
The order of the court a quo is set aside and is substituted with the
following order:
‘
1.
The interim protection order granted on 14 October
2019 is discharged;
2.
There is no order as to costs.’
(d)
Each party is to bear its costs of the appeal.
__________________
MASIPA
J
I agree, it is so
ordered
_________________
RADEBE
J
Details
of the Hearing
Date
of hearing:
27 August 2021
Date
of delivered:
3 June 2022
Appellant’s
counsel:
W N
Shapiro
Instructed
by:

MacGregor
Erasmus Attorneys
Respondent’s
counsel:       G J
Leppan
Instructed
by:

Ramdass and
Associates