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[2022] ZAECBHC 3
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S v Nojozi (3/2022) [2022] ZAECBHC 3; 2022 (1) SACR 662 (ECB) (17 March 2022)
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case No. 3/2022
Case
reference A18/2022
THE
STATE
and
LOYISO
NOJOZI
REVIEW
JUDGMENT
HARTLE
J
[1]
This matter came before me by way of
automatic review.
[2]
The accused was charged with contravening
section 17 (a), read with section 7 (1) of the Domestic Violence Act,
No. 116 of 1998
(“DVA”). Section 17 (a) provides as
follows concerning the nature of the offence:
“
17.
Offences
Notwithstanding the
provisions of any other law, any person who—
(a)
contravenes any prohibition, condition,
obligation or order imposed in terms of section 7;
…
is
guilty of an offence and liable on conviction in the case of an
offence referred to in paragraph (a) to a fine or imprisonment
…”
[3]
The court’s powers in respect of
protection orders is set out in section 7 of the DVA as follows:
“
(1)
The court may, by means of a protection order referred to in section
5 or 6, prohibit the respondent from—
(a)
committing any act of domestic violence;
(b)
enlisting the help of another person to commit any such act;
(c)
entering a residence shared by the complainant and the respondent:
Provided that the court may impose this prohibition only
if it
appears to be in the best interests of the complainant;
(d)
entering a specified part of such a shared residence;
(e)
entering the complainant’s residence;
(f)
entering the complainant’s place of employment;
(g)
preventing the complainant who ordinarily lives or lived in a shared
residence as contemplated in subparagraph (c) from entering
or
remaining in the shared residence or a specified part of the shared
residence; or
(h)
committing any other act as specified in the protection order.”
(Emphasis
added)
[4]
An act of domestic violence is defined in
section 1 of the DVA as meaning:
“
(a)
physical abuse;
(b)
sexual abuse;
(c)
emotional, verbal and psychological
abuse;
(d)
economic abuse;
(e)
intimidation;
(f)
harassment;
(g)
stalking;
(h)
damage to property;
(i)
entry into the complainant’s residence without consent, where
the parties do not share the same residence; or
(j)
any other controlling or abusive behaviour towards a complainant,
where
such conduct harms, or may cause imminent harm to, the safety, health
or wellbeing of the complainant;
”
(Emphasis
added for present purpose.)
[5]
Emotional, verbal and psychological abuse
is defined in section 1 of the DVA as meaning:
“
a
pattern of degrading or humiliating conduct towards a complainant,
including-
(a)
repeated insults, ridicule or name calling;”
[6]
The accused pleaded guilty and after the
magistrate questioned him in terms of section 112 (2) of the Criminal
Procedure Act, No.
51 of 1997 (“CPA”) he was convicted
and sentenced to twelve months imprisonment of which six months is
suspended for
a period of three years on condition that he is not
found guilty of the violation of a protection order (contravening
section 17
(a) of the
Domestic Violence Act, 116 of 1998
) committed
during the period of suspension.
[7]
I was concerned upon reading the record of
the plea proceedings that what the accused was admitting to, and what
conduct on his
part he was alleged to have committed in the charge
sheet, were at cross-purposes. The prosecutor made no comment
regarding
the facts admitted by him and the magistrate was ostensibly
satisfied that the accused’s plea of guilty properly amounted
to an admission of guilt in respect of all the essential elements of
the offence.
[8]
I further had reason to doubt that his
conviction was proper, given that the accused appeared to have
admitted to insulting the
complainant, but evidently not to her face,
and in circumstances where the insult was perhaps not of the kind
sought to be prohibited
by the relevant protection order.
[9]
In the result I addressed a query to the
magistrate in the following terms:
“
The
Magistrate is required to
URGENTLY
comment on the following aspects regarding the plea proceedings in
this matter:
1.
Although the correct section is alluded to
in the court’s recordal of the conviction of the accused, is it
competent for the
state to have charged him with an offence of having
contravened “the provisions of
section 7
(1) read with section
17 of the Domestic Violence Act 116 of 1999”?
2.
The Protection Order, the terms of which
the accused was alleged to have breached, was ostensibly only
introduced “into evidence”
after he was convicted.
Should he not have been afforded an opportunity before he was
convicted to have identified it and
confirmed its contents insofar as
it related to the alleged breach of its terms?
3.
The breach of the Protection Order is
described in the charge sheet as an insult by the accused in calling
his mother “a witch”
and “by her private parts,”
yet his admission was confined to having said (evidently of and not
to
) his
mother that she had a “bad heart, a devil’s heart.”
According to him this was said after he had already
been arrested,
and to the officers who arrested him, which he believed to be fair
comment. I assume that the state accepted
(without any obvious
clarification) that this was the insult that was taken to constitute
the contravention of the protection order,
but if that was so, what
then led to the arrival of the police? It seems (based on the fact
that the police were summoned at all)
that the accused must have said
or done something before the arrival of the arresting officer to
warrant his arrest in terms of
the protection order in the first
place. In respect of this period however, that is before the
arrest, he claimed to have
not uttered any insult to his mother.
Indeed, he lamented the fact that he had only asked her for spice and
was firm that
he had not been in the wrong in any respects in his
interaction with her. Therefore, if the admitted words uttered by him
(under
the circumstances which he says prevailed) constituted “the
offence”, can it be said that this amounted to an act of
domestic violence in breach of the protection order? Furthermore, did
he have the requisite
mens rea
to
commit the offence?
4.
Assuming that the act of the accused saying
what he did when he did warranted the conviction, was the sentence
imposed for a first
offender a fair one in all the circumstances and,
if so, why?
5.
Further and in any event, should the fact
that the accused was held in custody from 22 January 2022 until his
conviction awaiting
trial not have been taken into account in
reducing the time that he will serve in prison?
Given
the fact that the accused is already serving a custodial sentence,
the magistrate is requested to respond to this query by
email
addressed to the registrar on
fmenze@judiciary.org.za
by 16h00 on Wednesday, 9 March 2022.
”
[10]
He replied as follows:
“
In
response to your minute dated 07 March 2022 (your ref review 3/2022),
I respectfully comment as follows:
1.
I concede that the charge should rather
read “contravention of Section 17 (a) read with provisions of
Section 7 (21) of
Domestic Violence Act 116 of 1998
”.
This issue will be brought to the attention of the Control
Prosecutor.
2.
I concede I have made an oversight by
admitting the copy of the protection order after conviction, however
the protection order
was not in dispute.
3.
Accused understood the charge when it was
put to him. He pleaded guilty. During his explanation he
never denied the
allegations, instead he added more information.
I humbly submit that he had the intention to commit the offence as he
was
aware of the conditions of the protection order.
4.
It is my respectful submission that the
sentence is fair in all circumstances. The protection order
which was granted against
the accused should have acted as a warning
and deter the accused from abusing the complainant. It is clear
that the intention
of the legislation is that, people who commit
domestic violence must get heavy sentence, that is gleaned from the
penal clause
of the domestic violence act. Secondly, there are
many incidents of domestic violence in our district and in the whole
of
South Africa. The courts has a duty to make sure that their
orders (protection orders) are respected.
5.
The fact that the accused was in custody
was considered that is why half of the sentence is suspended.”
[11]
I am grateful for his instant response
which reflects our mutual concern for the fact that the accused is
already serving his custodial
sentence.
[12]
Despite the magistrate’s input, a
careful perusal of the review record suggests that although the
accused begrudgingly conceded
that the complainant would have been
insulted by him saying the words which he admitted to having said, or
felt hurt, by what he
said of her, it is not clear that he uttered
the insult to the complainant herself or that it is the kind of
insult intended to
be covered under the protection order.
[13]
Evidently the objective of the protection
order is to protect the complainant from an insult constituting an
act of domestic violence
committed by the accused against her as
specifically described in the order. The expressed object of
the DVA is “to
provide for the issuing of protection orders
with regard to domestic violence
”.
Therefore not only must there be an insult in violation of the
protection order, but it must in my view be the same
kind of insult
prohibited by the protection order.
[14]
The interim protection order (which was
confirmed on 9 April 2021) reads as follows:
“
3.
ORDER BY COURT AND PARTICULARS OF ORDER
3.1
The Court orders that :
3.1.1
*The application for a Protection Order is dismissed; or
[1]
3.1.2
*An Interim Protection Order is granted; and the Respondent is
ordered-
3.1.2.1
*not to commit the following act(s) of domestic violence
(1)
Insult or harass the applicant and S [....]
N [....].
(2)
Assault or threaten the applicant and S
[....] N [....].”
[15]
It would in my view be far reaching to
suggest that any insult concerning the accused’s mother uttered
to someone else about
her, would constitute a breach of the terms of
the protection order or amount to an act of domestic violence as
described in the
DVA. The terms of the order are very specific
to the parties and the acts sought to be contained by the protection
order
must be of the kind that harm, or may cause imminent harm, to
the safety, health or wellbeing of the complainant within the
contemplation
of the meaning of an act of domestic violence.
[16]
Section 8 (4) of the DVA confirms that what
is required before an arrest for allegedly committing the offence
referred to in section
17 (a) is justified is that:
“
there
are reasonable grounds to suspect that the complainant may suffer
imminent harm as a result of the alleged breach of the protection
order by the respondent.”
[17]
Subsection (5) is also of relevance and
provides as follows:
“
(5)
In considering whether or not the complainant may suffer imminent
harm, as contemplated in subsection (4)(b), the member of
the South
African Police Service must take into account-
(a) the risk to the
safety, health or wellbeing of the complainant;
(b) the seriousness of
the conduct comprising an alleged breach of the protection order; and
(c)
the length of time since the alleged breach occurred.”
[18]
Both these sections confirm to my mind that
the violation (the breach) must be one that is serious, and does
damage to the object
of the DVA.
[19]
Further, and self-evidently so, if the
accused admitted to the fact that he uttered an insult
of
the complainant (as opposed
to her
),
I cannot accept that he formed the requisite intention to have
committed an offence by violating the terms of the protection
order.
[20]
My
concern is demonstrated by the follow excerpt from the transcript
which follows after the accused’s explanation to the
court of
what had happened up to the point of the arrival of the arresting
officers. This prequel involved an intervention
by his uncle
and an apology to his mother for whatever else he might have said to
her, which was not canvassed by the court’s
questioning:
[2]
“
ACCUSED:
But I was surprised when … [indistinct] arrived there.
COURT:
Who are they?
ACCUSED:
The arresting officers.
COURT
:
Are they police officers?
ACCUSED:
Yes
COURT
:
And then what happened on their arrival?
ACCUSED:
It is then that I said something wrong, Your
Worship, saying that she had a bad heart, a devil’s heart.
COURT
:
Who was having a bad heart?
ACCUSED:
I was referring to my mother, Your Worship.
COURT
:
Yes
ACCUSED:
That was all and I was then arrested.
COURT
:
When you were uttering those words that she has a bad heart, a
devil’s heart?
INTERPRETER
:
Sorry, Your Worship?
COURT
:
When he was uttering those words that she has a bad heart, a devil’s
heart, was he not insulting her?
ACCUSED:
I was insulting her but I did not understand it at
the time.
COURT
:
What caused you not to understand it?
ACCUSED:
It is because I didn’t know that she can
call the police for me because of spices.
COURT
:
Did you know that you were uttering insults when you call a person
that she has got a devil heart?
ACCUSED
:
I didn’t understand then, Your Worship, but I understand it
now. I didn’t go there … [indistinct] but
I said
she has a devil’s heart.
COURT
:
Yes, this is exactly what I am asking. When you say to a person
he has got a devil’s heart, are you not insulting
that person?
ACCUSED:
Because I am a believer, it is not an insult there
at my church.
COURT
:
It is not an insult?
ACCUSED:
Now that I understand it, Your Worship, that this
is against the law, Your Worship.
COURT
:
No, I was just asking you is that the correct way of talking to a
person?
ACCUSED:
No, Your Worship.
COURT
:
When you were uttering those words, what was your purpose?
ACCUSED:
I thought that I would feel better, Your Worship.
COURT:
And how did you expect her to feel?
ACCUSED:
It was not my intention to abuse her, Your
Worship.
COURT:
Do you think that she will feel happy?
ACCUSED:
I only understand it now, Your Worship, that it
was …. [indistinct] her, Your Worship.
COURT:
Now that you now realise, what do you think those
words did to her?
ACCUSED:
I think they hurt her. That’s the
reason why I am pleading guilty.
COURT:
And you were aware that according to the
conditions of the protection order, you are not supposed to insult
her?
ACCUSED:
Yes.
COURT:
And before you uttered those words, you were
reminded by your uncle about the conditions of the protection order.
ACCUSED:
Yes, Your Worship, I apologised, she accepted the
apology but later called the police for me. That’s why I
say that
… [indistinct].
COURT:
And you were aware at that time that if you
contravene a protection order, that is punishable by law?
ACCUSED:
Yes, it was explained to me, Your Worship.
COURT:
Mr N [....], the Court is satisfied that indeed
you are pleading guilty to the offence of violating the conditions of
the protection
order. You are found
GUILTY
as charged.”
[21]
Whilst I appreciate that acts of domestic
violence are egregious and fall to be sentenced appropriately - I
agree with the magistrate
that the sentence would have been justified
upon a proper conviction, I am not satisfied on the admitted facts
that it can be established
that the accused committed a breach of
clause 3.1 of the protection order or that he had the necessary
criminal intention to violate
the terms of the order.
[22]
I
accept, given the magistrate’s response above, that perhaps
something may have been lost in the English translation.
[3]
It therefore appears necessary in my view and in the interests of
justice (given the seriousness of the offence) for the conviction
to
be set aside and for the matter to be referred back to the
magistrate’s court for fresh plea proceedings to be undertaken,
should the prosecution wish to do so.
[23]
In the result I issue the following order:
1.
The conviction and sentence are set aside;
and
2.
The matter is referred back to the
magistrate’s court for proceedings to commence
de
novo
, should the prosecution wish to do
so.
B HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE
I.T. STRETCH
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT: 17 March 2022
[1]
The issuing magistrate appears not to have made any election here,
but since the “interim protection order” was made
final,
the application was obviously not dismissed.
[2]
The accused describes his mistake, up to that point, being that he
argued back, or responded to the provocation of his mother’s
insults of him and his father. He did not however admit to any
wrong or violation of the protection order that would have
justified
the suspended warrant for his arrest being carried into effect.
I fear therefore that his arrest may have been
effected for an
unauthorised purpose under the guise of the provisional warrant for
his arrest (see section 8 (1) of the DVA),
although the police may
have been summonsed for a different reason. These facts would
however obviously have been within
the purview of the prosecutor and
ought if relevant to have been brought to the attention of the
magistrate since the admitted
facts seem different from what the
charge sheet indicates.
[3]
There was but a vague suggestion, implied in the accused’s
concession that this is not a correct way “of talking
to a
person” that he did mean to admit that he insulted the
complainant directly. The question remains however, why
would
the utterance made under those circumstances amount to an insult
prohibited by the protection order?