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[2019] ZAKZPHC 61
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K.V v W.V (AR72/2018) [2019] ZAKZPHC 61; 2020 (1) SACR 89 (KZP) (13 September 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR72/2018
In
the matter between:
K[….]
V[….]
Appellant
and
W[….]
V[….]
Respondent
ORDER
Having considered the
matter and after hearing counsel, the following order is made:
1.
The appellant’s appeal is dismissed with costs.
APPEAL JUDGMENT
Masipa
J (Chetty J concurring)
Introduction
[1]
The appellant appeals against the judgment of the court a quo handed
down on 17 August
2016 in the Durban Magistrate’s Court which
confirmed an interim order issued in terms of the Domestic Violence
Act.
The
Facts
[2]
The respondent approached the Magistrate’s Court for an interim
protection order
against the appellant who is her husband. In her
application, she highlighted the abuse she experienced, including
physical, mental
and emotional abuse According to the respondent the
appellant had threatened both her and their baby and forcefully
removed them
from their marital home. When she resisted this, he
assaulted her.
[3]
It is apparent from the record that the relationship between the
appellant and the
respondent was volatile. He had been evicted from
her parental home in [….] on numerous occasions prior to the
obtaining
of the order appealed against. Pursuant to the last
eviction, the appellant secured accommodation in a block of flats at
the Bluff
which was close to his work and that of the respondent.
[4]
After the appellant’s relocation to the Bluff, the respondent
continued to live
in Phoenix with their minor child. Since the child
was small and still being breastfed, the respondent took her to a day
care centre
near her workplace. It became strenuous for the
respondent and the child to travel daily from Phoenix to the Bluff
since they had
to leave early in the morning and drive through heavy
traffic. Despite her previous problems with the appellant, when he
offered
that they move in with him, she accepted this. This was
during June 2016. While the parties initially lived as husband and
wife,
it appears that the respondent soon moved into a separate
bedroom.
[5]
On or about 5 August 2016, an argument ensued between the parties as
a result of the
respondent accessing the appellant’s bank
account and effecting certain transactions from the account. It is
common cause
that the appellant had previously provided the
respondent with his banking login credentials. The appellant contends
however that
he had not authorised her to effect any payment on that
day. The respondent contended that the appellant owed her monies for
expenses
incurred when the baby was born and while they lived in
Phoenix. Also, that they had agreed to share the expenses of the
child
equally, which the appellant was not doing. In view of this and
on this particular day, she decided to access his bank account
electronically and effected some payments which included the child’s
day care fees.
[6]
The appellant confronted the respondent about this and following her
response, he
left their apartment. There was no further communication
between them and the next day, he left for his dayshift. The
respondent
took the child and went to her parental home and returned
on 10 August 2016.
[7]
On their return, the respondent took the child to the day care centre
and went to
the apartment to collect her laptop before going to work.
Upon arrival at the apartment, she noticed that her belongings were
packed
in boxes. She told the appellant that he had no right to evict
her from the apartment. In reply, he said ‘my love, I am tired’
and told her that he was arranging a removal company and sending her
back to Phoenix. The appellant left the apartment and the
respondent
followed shortly thereafter.
[8]
It appears that when the appellant left, it was because he went to
obtain a protection
order against the respondent arising from the
incident of 5 August 2016. He went to the police station and he was
not assisted.
He was directed to court where he obtained a protection
order. He could not receive assistance from the police to serve it
and
returned home. On arrival at the apartment, he went to sleep as
he was exhausted. The respondent returned later with the child and
went into his bedroom where she started removing his items from the
wardrobe.
[9]
According to the appellant, since the respondent was behaving
irrationally, he slapped
her to put some sense into her. However, in
his oral evidence, he said she threw a can of deodorant on the floor
and when he woke
up from the bed to restrain her from throwing his
clothes to the floor; he tripped on the can and fell on her. Another
version
is a complete denial of any assault on the respondent which
contradicts the self-defence argument raised by his counsel. The
respondent
retreated into the second bedroom and on her version, sat
on the bed to breastfeed the child. While doing this, the appellant
went
into the bedroom verbally abusing her. She retaliated and the
appellant continued to assault her. He denies this assault as well.
The respondent contends that the appellant forcefully removed the
baby from her while she was breastfeeding. She had to beg him
to
return the baby to her as the baby was crying out of fear. She phoned
her brother who arrived and took her to the police station.
[10]
While the respondent was at the police station to lay a charge, the
appellant approached her
with a family friend who is also a police
officer to serve a protection order on her. On her version, this was
not served as the
police officer was not on duty and in uniform and
she left the police station and went to Phoenix. She went to court
the next day
to seek a protection order and was issued with an
interim protection order.
[11]
The terms of the interim protection order prohibited the appellant
from committing domestic violence
in the form of physical abuse and
verbal abuse. Also, that he was not to enlist the help of another
person to commit these acts.
The appellant was also interdicted from
entering the respondent’s residence in Phoenix and not to enter
her workplace. The
order directed the police to accompany the
respondent to collect her personal belongings from the apartment.
The
issue
[12]
The issue in this appeal relates to whether the decision of the court
a quo in confirming the
interim order was reasonable and justified.
[13]
In considering whether or not to confirm the interim order, the court
a quo was guided by the
preamble to the Domestic Violence Act 116 of
1998 (the Act). The court also took into account the meaning of
domestic violence
in the Act being physical abuse, in particular
emotional, verbal and psychological abuse, as it is relevant in this
case.
‘
Where such conduct harms or may
cause imminent harm to the safety, health or wellbeing of the
complainant. Emotional, verbal or
psychological abuse means a pattern
of degrading or humiliating conduct towards a complainant including
repeated insults, ridicule
or name calling, repeated threats to cause
emotional pain, repeated exhibits of obsessive possessiveness or
jealousy which is such
as to constitute serious invasion of the
complainant’s privacy, liberty, integrity and security.’
The meaning of physical
abuse as envisaged in the Act is as follows:
'physical abuse
means
any act or threatened act of physical violence towards a complainant.
And 'emotional, verbal and psychological abuse'
means
a pattern of degrading or humiliating conduct towards a complainant,
including-
(a)
repeated
insults, ridicule or name calling;
(b)
repeated
threats to cause emotional pain; or
(c)
the
repeated exhibition of obsessive possessiveness or jealousy, which is
such as to constitute a serious invasion
of the complainant's
privacy, liberty, integrity or security;’
[14]
The court a quo concluded that it was required to determine whether
on a balance of probabilities,
the evidence proved that the appellant
committed domestic violence. It found that there was no dispute that
there had been physical
contact which was unbecoming which fell
within the definition of domestic violence in the Act.
[15]
It was argued before the court a quo that unlawfulness was a
necessary requirement to determine
whether conduct constitutes
domestic violence. The court rejected this argument on the basis that
there was nothing in the Act
to provide for this. Consequently, it
rejected an invitation by the appellant to read the requirement of
unlawfulness from either
the law of delict or criminal law.
[16]
The court a quo found it difficult to accept that for a violent act
to constitute domestic violence,
unlawfulness must be found to exist.
It concluded that this was not what was contemplated in the Act and
the Constitution. The
court found that in any event, the appellant
had in his oral evidence admitted to pushing and pulling the
respondent leading to
her falling to the floor. This conduct it found
to constitute domestic violence in the form of physical abuse. The
court in confirming
the interim order, found that there was
insufficient evidence to conclude that there was verbal abuse and
therefore discharged
the order in this regard.
Submissions
by Counsel
[17]
It was argued by Mr
Parker
, for the appellant, that it was
possible that the actions of the appellant were involuntary and that
he slipped, lost his balance
and fell onto the respondent. He
identified the issue to be determined as being whether the
appellant’s action on the day
can be categorised as physical
abuse as required by the Act.
[18]
While the Act defines physical abuse as ‘any act or threatened
act of physical violence
towards a complainant’, he argued that
the proper interpretation should be, ‘any act of physical
violence towards a
complainant or any threatened act of physical
violence towards the complainant.’ In my view, the distinction
he makes between
the definition in the Act and his interpretation is
of no consequence as the result remains the same.
[19]
He relied on the definition of violence in The Concise Oxford
Dictionary 7 ed which defines it
as ‘the unlawful exercise of
physical force.’ Consequently, he argued that it was incumbent
for the court a quo to
find that the admitted action by the appellant
comprised unlawful exercise of physical force. It was argued further
that the findings
of the court that unlawfulness was not an element
required for domestic violence cases gave the phrase ‘physical
abuse’
a far too wide interpretation.
[20]
Mr
Van Reenen
, for the respondent, argued that it was
incorrect to conclude that the court a quo granted the final
interdict after finding that
there was physical abuse. It was
submitted that the court had in fact found on a balance of
probabilities that the appellant’s
conduct constituted domestic
violence. The evidence before the court was sufficient to justify its
conclusion.
[21]
Initially, the respondent raised an issue of the appeal having lapsed
and after considering the
matter, withdrew this point and accepted
that proper procedures were followed. Condonation was however
required in respect of the
appellant’s practice note and after
considering the matter and the interest of the parties and of
justice, this court ruled
in favour of granting condonation.
[22]
Mr
Parker
submitted that the manner in which the court a quo
decided on the matter took away the right of individuals to act in
self-defence.
He argued that the appellant was protecting his
possessions and if he had done so in a public space, there would be
no consequences.
It therefore was inexplicable that in a domestic
environment, self-defence could not be raised. If the action was
lawful by virtue
of it being in self-defence, then there would be no
abuse. He submitted that the respondent was the aggressor and the
appellant
used moderate force to protect his property. Consequently,
the court erred in finding that because there was force, it followed
that there was domestic violence.
[23]
Mr
Van Reenen
argued that the definition of domestic violence
was clear in the Act and the purpose for which the Act was
promulgated was apparent
from the preamble. The Act refers to
domestic violence as relating to conduct that harms. It is not in the
context of assault as
envisaged in criminal law.
[24]
It was submitted that on the appellant’s version, it was
improbable that he could have
slipped. He accepted that he used
moderate force. It could not be said that the respondent was the
aggressor as he arrived home
and found her belongings packed while
the appellant opposed confirmations of the order on the basis that
nothing transpired after
the interim order was granted. There was no
prejudice to the appellant if the order is confirmed as it served to
prevent future
harm. In support of these submissions, Mr
Van
Reenen
relied on
Ndwandwe v Ndwandwe
[2012] JOL 29617
(KZP);
Trainor v S
[2003] 1 All SA 435
(SCA); and
Mnyandu v
Padayachi
[2016] 4 All SA 710
(KZP).
[25]
As regards the issue of unlawfulness raised by Mr
Parker
, he
submitted that the Act specifically referred to harm in respect of
domestic violence and that this was consistent with the
finding of
the court a quo. Consequently, the criminal and delictual tests were
not applicable. Mr
Parker
submitted that confirmation of the
order served no purpose since it sought to keep the parties away from
each other which was already
achieved by them living apart.
Analysis
[26]
In
interpreting a statute, regard is always had to the preamble, where
such exists, which sets out the main objects of the Act.
The aim is
to ascertain the intention of the legislature. The preamble is part
of the context of the Act. See: G M Cockram
Interpretation
of Statutes
3 ed Juta (1987) at 62. In
S
v Mhlungu
[1995] ZACC 4
;
1995 (7) BCLR 793
(CC) para 112, Sachs J stated the following in
relation to the preamble of the 1993 Constitution:
‘
The
preamble in particular should not be dismissed as a mere aspirational
and throat-clearing exercise of little interpretative
value. It
connects up, reinforces and underlies all of the text that follows.
It helps to establish the basic design of the Constitution
and
indicate its fundamental purpose.’ (Footnote omitted)
[27]
While in the past this, applied in instances of ambiguity or lack of
clarity, courts have pursuant
to the advent of the 1996 Constitution
evidenced readiness to invoke the use of preambles to legislative
instruments irrespective
of perceived clarity or ambiguity of the
language that stood to be construed. See
Gaming Association of
South Africa (KwaZulu-Natal) & others v Premier, KwaZulu-Natal,
and others
(No 1)
1997 (4) SA 494
(N) at 501B and L du Plessis
Re-Interpretation of Statutes
Butterworths (2002) at 239-242.
It is not surprising that the court a quo in its decision, took
cognisance of the preamble to the
Act in order to arrive at the
correct interpretation. It is apparent from the preamble that the
intention of the legislature in
dealing with domestic violence
matters was to apply different principles to those set out in
Criminal and Delictual laws.
[28]
In defining domestic violence, the Act specifically excluded the
phrase ‘unlawful (ness)’
and referred only to conduct
that ‘harms, or may cause imminent harm to, the safety, health
or wellbeing of the complainant’.
When the Act was enacted, the
legislature was alive to the criminal and delictual principles
dealing with abuse. However, in passing
this Act, consideration was
given to the rights protected in the Constitution more particularly,
the right to equality, freedom
and security of person and violence
against women and children.
The
purpose of the Act was dealt with by the Constitutional Court in
Omar
v Government of the Republic of South Africa & others
(Commission
for Gender Equality, Amicus Curiae)
[2005] ZACC 17
;
2006
(2) SA 289
(CC) and I align myself with the views expressed by Van
der Westhuizen J in para 13, stating:
‘
[D]omestic
violence in our society is utterly unacceptable. It causes severe
psychological and social damage and there is clearly
a need for an
adequate legal response to it.’
[29]
In
Ndwandwe
Steyn
J referred to
S
v Engelbrecht
2005
(2) SACR 41
(W)
,
where
Satchwell J considered the complexities of domestic violence as
follows:
‘
[341]
I agree with the argument that the wide definition of 'domestic
violence' in the DVA is unequivocal recognition by the Legislature
of
the complexities of domestic violence and the multitude of
manifestations thereof.
[342]
It must be accepted that domestic violence, in all manifestations of
abuse, is intended to and may
establish a pattern of coercive
control
over the abused woman, such control being exerted both
during the instances of active or passive abuse as well as the
periods that
domestic violence is in abeyance. (My emphasis)’
[30]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA), the court had the following to say about
interpretation:
‘
. . .Interpretation is the
process of attributing meaning to the words used in a document, be it
legislation, some other statutory
instrument, or contract, having
regard to the context provided by reading the particular provision or
provisions in the light of
the document as a whole and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration
must be given to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision
appears; the apparent purpose to which
it is directed and the material known to those responsible for its
production. Where more
than one meaning is possible each possibility
must be weighed in the light of all these factors. The process
is objective,
not subjective. A sensible meaning is to be preferred
to one that leads to insensible or unbusinesslike results or
undermines the
apparent purpose of the document.’ (Footnote
omitted)
This was followed in
Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd
2016 (1) SA
518
(SCA) at 525-527.
[31]
The Act introduced a wider form of protection by making reference to
the word ‘harm’.
In the absence of this wide meaning, all
that would have been achieved by the legislature would have been to
introduce a law which
simply added onto the delictual or criminal
principles already in existence and not to achieve the purpose which
this Act sought
to do. What the appellant seeks to do by adding the
requirement of unlawfulness is exactly this. To give this restrictive
interpretation
to the provisions of the Act would be to defeat the
purpose for which it was passed. This was in fact concluded in
Engelbrecht
where Satchwell J held that the wide definition of
domestic violence is an unequivocal recognition by the legislature of
the complexities
of domestic violence and the multitude of
manifestations thereof. On a consideration of the facts and the
arguments submitted,
I find no reason to interfere with the
interpretation by the court a quo.
[32]
As set out in
Coetzee v Griessel
(27576/2010)
[2011] ZAWCHC
318
(24 August 2011) in determining whether or not to grant a final
interdict the following requirements must all be present:
‘
18.1.
A clear right, which the applicant has to prove on a balance of
probabilities:
18.2.
An act of interference, which is an act constituting an invasion of
another's right; and
18.3.
Proof that there is no other satisfactory remedy available to the
applicant.
(See C B Prest:
The Law and Practice of Interdicts Juta Law at pp42-48.)’
[33]
In
Minister
of Law and Order & others v Nordien & another
1987
(2) SA 894
(A), the court held that an applicant seeking an interdict
is not required to establish on a balance of probabilities that
flowing
from the undisputed facts, injury will follow. All he has to
show is that it is reasonable to apprehend that injury will result.
The test for apprehension is an objective one. The court must decide
on the facts presented whether there is any basis for the
entertainment of a reasonable apprehension by the applicant.
[34]
On the facts, it can be concluded that the respondent’s
protection against physical abuse
as set out in the Act evidences a
clear right. This right was interfered with when the appellant
assaulted her. The argument that
she was the aggressor and that the
appellant was acting in self-defence cannot be sustained since the
test applicable is not the
criminal law test. In any event, the
appellant admitted that he assaulted her and said this was because
she was acting irrationally.
It was never his evidence before the
court a quo that he acted in self-defence.
[35]
There was a history of domestic violence and the respondent felt
threatened by the appellant.
The only security available to her was
therefore the confirmation of the order as this would continue to
keep stable relations
between the parties. I say this because
following from the provision of the interim order, no further
incidents occurred. In the
absence of the court order, the fact that
the respondent relocated back to her parental home would be of little
consequence as
the appellant had in the past followed her there and
conducted himself in an intimidating or unruly manner in the presence
of the
respondent’s elderly father.
Order
[36]
In the result, the following order is made:
1.
The appellant’s appeal is dismissed with costs.
Masipa J
DETAILS
OF THE HEARING
Appearances:
For
the Appellant:
Mr G M Parker
Instructed
by:
G M Parker Attorneys
For
the Respondent:
Mr
C Van Reenen
Instructed
by:
K Asmal Attorneys
Matter
heard on:
17 May 2019
Judgment
delivered:
13 September 2019