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[2017] ZAKZPHC 10
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Naidoo v Pillay (AR241/2016) [2017] ZAKZPHC 10 (13 March 2017)
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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: AR241/2016
In
the matter between:
SHANTELLE
NAIDOO APPELLANT
and
KESANDERAN
PILLAY RESPONDENT
Coram :
Balton J et Seegobin J
Heard
: 16 September 2016
Delivered : 13 March 2017
ORDER
On appeal from the Magistrates’ Court, Pinetown
(sitting as a court of first instance):
(a)
The appeal succeeds to
the extent set out here below.
(b)
The order granted by
the court
a quo
in case 807/2015 is hereby set aside and is replaced with the
following:
“
The application is dismissed”.
(c)
There will be no order
as to costs.
JUDGMENT
SEEGOBIN
J:
[1]
Martha Minnow
in her essay ‘Between Vengeance and Forgiveness: Feminist
Responses to Violent Injustice’
[1]
explains that:
“
Under restorative justice, repairing
relationships between offenders and victims and within the community
take precedence over law
enforcement.
Forgiveness
and reconciliation are central aspirations
.
Also elevated are the goals of healing individuals, human
relationships, and even entire societies. One reason to
pursue
these aspirations is pragmatic and psychological. Retributive
approaches may reinforce anger and a sense of victimhood;
reparative
approaches instead can help victims move beyond anger and beyond a
sense of powerlessness . . . where victims do forgive,
it is much for
their own healing and embrace of a future without rage as it is for
the benefit of the offender
.”
[my emphasis]
[2]
The above passage which emphasizes the need for forgiveness and
reconciliation was quoted with approval by Sachs J (writing
for the
Court) in
S v
Baloyi.
[2]
It applies with equal force to the present matter in which the two
parties, who are husband and wife, have pursued each other
quite
relentlessly through the courts in an endeavor to have their personal
differences and petty disputes resolved through unnecessary
litigation rather than seeking to restore their relationship through
dialogue, forgiveness and reconciliation. Over the past
two to
three years, they have embarked on an abusive tit for tat campaign
against each other, vilifying and denigrating each other
at every
opportunity. What they hope to achieve at the end of all of
this is anyone’s guess.
[3]
The present is an appeal arising from two domestic violence
applications which were brought by the parties against each other
in
the Magistrate’s Court, Pinetown, one under case number
807/2015 and the other under case number 871/2015. In respect
of the matter under case number 807/2015 which was brought by the
respondent, Mr Pillay, against his wife, the appellant, the court
a
quo
varied the order by effectively discharging the interim
protection order that was initially granted. In essence that
interim
protection order was aimed at interdicting the appellant from
stalking the respondent and from harassing Mr Pillay’s staff
and from communicating with him in any manner whatsoever. The
court
a quo
went on to grant a final order against the
appellant not to commit certain acts of domestic violence, namely
that she was not to
swear at or insult the respondent or assault or
threaten harm to him.
[4]
In respect of the application under case number 871/2015 which was
brought by the appellant, the finding of the court
a quo
was
rather brief: it found that the appellant ‘must show that
objectively on a balance of probabilities her apprehensions
were
well-grounded. Mere assertions of her fears are insufficient
and it is therefore my view that the interim protection
order under
871/2015 is hereby set aside in total.’
[5]
The court
a quo
declined to make any costs order in both
applications.
[6]
One of the issues arising on appeal is whether the court
a quo
acted incorrectly in not referring both applications for the hearing
of oral evidence given the material disputes of fact on the
papers.
[7]
The referral to oral evidence in the Magistrate’s Court is
governed by the provisions of sub-rules 55(1)(k) (i) and (ii)
[3]
which are couched in almost identical terms as the provisions of
sub-rule 6(5)(g)
[4]
of the Uniform Rules of this Court. The overriding
consideration in the exercise of the discretion conferred by these
sub-rules
is to ensure a just and expeditious decision. In
other words, in matters in which a genuine and
bona
fide
dispute of
fact arises, the court hearing the application must be persuaded that
the hearing of evidence will be fair to the parties
and will conduce
to an effective and speedy resolution of the dispute and the overall
application.
[5]
How this discretion is to be exercised is to be found in the various
rules of practice which have been developed by our courts
from time
to time. For the purpose of this appeal I merely refer to two
such practices herebelow.
[8]
The first is that motion proceedings are only appropriate for the
resolution of legal issues based on common cause facts and
are not
designed to determine probabilities. In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[6]
Corbett JA set out succinctly the approach to be adopted to factual
disputes arising on application papers as follows:
“
It is correct that,
where in proceedings on notice of motion disputes of fact have
arisen on the affidavits, a final order,
whether it be an interdict
or some other form of relief, may be granted if those facts averred
in the applicant's affidavits which
have been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such
a situation. In certain instances
the denial by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of
fact. . . . If in such a case the respondent
has not availed himself of his right to apply for the deponents
concerned to be called
for cross-examination under Rule 6(5)
(g)
of the Uniform Rules of Court . . . and the Court is satisfied as to
the inherent credibility of the applicant's factual averment,
it may
proceed on the basis of the correctness thereof and include this fact
among those upon which it determines whether the applicant
is
entitled to the final relief which he seeks. . . . Moreover, there
may be exceptions to this general rule, as, for example,
where the
allegations or denials of the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting
them
merely on the papers. . . .
”
[9]
With reference to the general rule in
Plascon-Evans
,
Harms DP in
National
Director of Public Prosecutions v Zuma
[7]
pointed out that the position may be different ‘if the
respondent’s version consists of bald or uncreditworthy
denials,
raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers’. In
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and
Another
[8]
Shongwe JA was of the view that this could be done where ‘the
version propounded by the respondent was fanciful and wholly
untenable’.
[10]
The second principle is that an application to refer a matter to oral
evidence should be made at the outset and not after argument
on the
merits. This is a salutary rule of practice which always
applied despite the judgment in
Kalil
v Decotex (Pty) Ltd and Another
[9]
which seemed to
have ushered in a new approach which permitted counsel for an
applicant to present his case on the footing that
the applicant was
entitled to relief on the papers but to apply in the alternative for
the matter to be referred to evidence if
the main argument should
fail. In
De
Reszke v Marais & Others
,
[10]
it was pointed out, correctly, in my view, that many practitioners,
seem to take it half for granted that a court will hear argument
notwithstanding disputes of fact and, failing success on such
argument, will seek to refer such disputes, or some of them, for
oral
evidence. It should be borne in mind that the general rule remains
that an application to refer a dispute for oral evidence
should be
made prior to argument on the merits. While there are certain
exceptions to this general rule, they remain exceptions.
[11]
A further matter that should be borne in mind is that while the
provisions of Rule ss(1)(k)(l) and (iii) of the Magistrate’s
Court Rules and 6(5)(g) of the Uniform Rules of this court extend a
wide discretion to a court to make any order which to it seems
meet
at the time, including a referral,
mero
motu
, to oral
evidence, in practice this hardly ever happens. The
undesirability of a judge (or magistrate)
mero
motu
ordering a
referral to oral evidence or to trial was highlighted by then full
court of the Transvaal Provincial Division in
Joh-Air
(Pty) v Rudman
[11]
in which Myburgh J, writing for the court, said the following:
“
It requires in my
view a bold step, by a presiding Judge in an opposed application, to
refer the matter to evidence or trial
mero
motu
,
because it is a real possibility that the applicant had decided not
to ask for such procedure to be followed because: he may not
want to
be involved in the cost thereof; his prospects of success, after
studying the answering affidavits, may be slender;
it may possibly
lead to an undesired protracted hearing; the amount involved may be
small; the respondent may be a man of straw
or on account of any of
the other usual considerations in deciding whether or not to apply
for the provisions of Rule 6(5)
(g)
to be invoked. In the present case the amount involved is only
half of R5375. In my view it should not be left to the
presiding Judge to determine, in the light of what I have said,
whether the application should be decided on the affidavits
or not.
In proper circumstances the presiding Judge may, in his discretion,
decide to do otherwise. In the present case, in my
view, the Judge
cannot be faulted for not having referred the case to trial,
notwithstanding that he had not been requested so
to do.
”
[12]
As I pointed out at the outset, the two applications in the present
matter were consolidated before the court
a quo
and proceeded
as one. It was only after argument by the respondent’s
attorney on the merits that the appellant’s
attorney applied,
for the first time, for the matter to be referred for the hearing of
oral evidence. That application was
opposed with the
respondent’s attorney pointing out that the appellant was
invited on several occasions to consider referring
the matter for
oral evidence but that she refused to do so. After hearing
argument the learned magistrate ruled against such
a referral.
[13]
In my view and having regard to the principles set out above, the
appellant was bound by the election to have the matter argued
on the
papers. She could not, half way through the argument, change
her mind and only then decide that the matter be referred.
I
accordingly find that the learned magistrate’s ruling in this
regard was a correct one in the circumstances. Since
the
applications were being argued on the papers as they stood and
despite the factual disputes that arose, they had to be decided
in
accordance with the principles set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd.
[12]
[14]
In light of the above the real issue which faced the learned
magistrate in the application under case number 807/2015, was
whether
the applicant in that matter
viz
Mr Pillay, had satisfied the
requirements for a final interdict. The incident giving rise to
the granting of an urgent interim
protection order in terms of
section 52 of the Act allegedly occurred on 23 March 2015 and was
referred in argument as the ‘Plantations’
incident.
In support of his application on 25 March 2015 for a protection
order, Mr Pillay averred that the appellant had
verbally abused and
insulted him in the presence of their minor children. She also
grabbed his phone (in the form of a tablet)
and assaulted him with it
on his face and chest. While he was attempting to calm their
two children down by carrying them,
the appellant grabbed hold of his
unattended phone and proceeded to smash it. He thereafter
proceeded to the Hillcrest Police
Station and opened charges of
assault,
crimen injuria
and malicious damage to property
against the respondent.
[15]
It is interesting to note that although the above incident was
alleged to have taken place on 23 March 2015, the application
for a
protection order was only pursued on 25 March 2015 and that too on an
urgent basis. It is also worth noting that the
nature of the
relief sought in paragraph 3 of his founding affidavit is a far cry
from the relief that was actually granted by
the court. For
ease of reference, the order he sought was the following:
“
1. An interim protection order
in terms of Section 5 (2) of the Domestic Violence Act be and is
hereby granted with the following
terms:-
a.
Respondent must be
ordered not to commit any act of domestic violence against me;
b.
Respondent must be
ordered not to enter Applicant’s residence situate at […],
[…] S. Road, Hillcrest, KwaZulu
Natal;
c.
Respondent must be
ordered not to commit any other acts of domestic violence, namely,
physical abuse, emotional, verbal and psychological
abuse;
intimidation, harassment and damage to property.”
Whereas
the order that was granted was the following,
viz
:
“
1. Stalking;
2. To stop harassing the
complainant’s staff;
3. To stop communicating with the
complainant in any manner whatsoever.”
[16]
In her answering affidavit, the appellant categorically denied the
version put up by the respondent. She averred that
he arrived
at her home uninvited. She denied assaulting him with his phone
and averred that he in fact raised his hand to
assault her and when
she attempted to block her face his phone fell to the floor.
She admitted that she raised her voice
to draw attention to the
danger she faced. She also admitted that she called him a
pervert.
[17] Section 6(2) of the Act specifically provides that:
“
If the
respondent appears on the return date in order to oppose the issuing
of a protection order, the court must proceed to hear
the matter
and:-
(a)
Consider any evidence previously received
in terms of section 5(1); and
(b)
Consider such further affidavits or oral
evidence as it may direct, which shall form part of the record of the
proceedings.
”
[18]
Section 6(4) of the Act provides that a court must, after a hearing
as contemplated in s6(2), issue a protection order if it
finds, on a
balance of probabilities, that the respondent has committed or is
committing an act of domestic violence.
[19]
When one has regard to the basic facts put up by the respondent for
an interim protection order on 25 March 2015, the complete
denial
thereof by the appellant as well as her version of what really
transpired, the court
a quo
was not justified, in my view, in
granting a final order in case number 807/2015. I consider that
the alleged acts of domestic
violence which occurred on 23 March
2015, cannot by any stretch of the imagination, be objectively found
to give rise to a reasonable
apprehension of harm which was deserving
of protection by a final order. The grounds advanced by the
respondent for such
relief were not sufficiently serious to secure
such an order, whether on an interim basis or finally.
[20]
A reasonable apprehension of harm is one which a reasonable person
might entertain on being faced with the facts which a court
finds to
exist on a balance of probabilities.
[13]
The author CB Prest:
The
Law and Practice of Interdicts
points at page 48 that:
“
The test for apprehension is an objective
one. The applicant must therefore show objectively that his
apprehensions are well
grounded. Mere assertion of his fears
are insufficient. The facts grounding his apprehension must be
set out in the
application to enable the court to judge for itself
whether the fears are indeed well grounded
.”
[21]
Apart from the threshold test which the respondent had to meet as set
above, there is a further fundamental reason why the
court
a quo
should not have found in his favour at all. This relates to the
nature of the relief he sought initially and that which he
was
granted in the first place. As I pointed out already, the
learned magistrate effectively discharged the interim relief
and
thereafter granted relief which was completely different from that
contained in the interim order. It is not clear from
the record
what motivated the learned magistrate to grant the relief which she
did: there was simply no evidence at all of any
harassment of the
respondent’s staff or of any stalking of the respondent.
In my view, it was highly inappropriate
and incompetent for the court
a quo
to grant relief which had not been sought on the papers
and which was different from the case which the appellant was
required
to meet in the first place.
[22] As far as the issue of costs are concerned, while
ordinarily the costs should follow the result, in the circumstances
of the
particular case where the parties have behaved abominably
towards each other and have simply refused to reconcile their
differences
in a mature and responsible manner, I consider that it is
appropriate that they carry their own costs.
ORDER
[23]
The order I would make is the following:
(d)
The appeal succeeds to
the extent set out here below.
(e)
The order granted by
the court
a quo
in case 807/2015 is hereby set aside and is replaced with the
following:
“
The application is dismissed”.
(f)
There will be no order
as to costs.
_______________
_______________ I agree
BALTON J
Date of Hearing
:
16 September 2016
Date of Judgment
: 13 March
2017
Counsel for Appellant :
U. Lennard
Instructed by
:
Garlicke &
Bousfield Inc
c/o Ayoob Attorneys
Counsel for Respondent :
VM Naidoo SC
Instructed by
:
Subhash Maikoo and
Associates
[1]
(1998) 32 New England Law Review 967
at 969-70.
[2]
2000(1) SACR 81 (CC). The issue in
Baloyi
was whether the provisions of
section 3(5)
of the
Prevention of
Family Violence Act, 133 of 1993
had infringed the accused’s
right under section 35(3)(h) of the Constitution to be presumed
innocent under section 35 of
the Constitution. It should be
noted that Act 133 of 1993 has subsequently been replaced by the
Domestic Violence Act 116 of 1998
.
[3]
SS(1) (a) . . .
.
. .
(k)
(i)
Where an application cannot properly be
decided on affidavit the court may dismiss the application or make
such order as it deems
fit with a view to ensuring a just and
expeditious decision.
(ii)
The court may in particular, but without
affecting the generality of subparagraph (i) direct that oral
evidence be heard on specified
issues with a view to resolving any
dispute of fact and to that end may order any deponent to appear
personally or grant leave
for that person or any other person to be
subpoenaed to appear and be examined and cross-examined as a witness
or it may refer
the matter to trial with appropriate directions as
to pleadings or definition of issues, or otherwise.
[4]
Uniform
Rule 6(5)(g)
provides as follows:
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems
fit with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the aforegoing,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order any deponent
to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear and be
examined and cross-examined
as a witness or it may refer the matter to trial with appropriate
directions as to pleadings or definition
of issues, or otherwise.
[5]
Lombard v Droprop
2010(5) SA 1 SCA.
[6]
1984(3) SA 623 (A) at 634H-635C.
[7]
2009(2) SA 277 (SCA) para 26.
[8]
2011(1) SA 8 (SCA) para 21.
[9]
1988(1) SA 943 (A) at 981F.
[10]
2006(1) SA 401 (CPD).
[11]
1980(2) SA 420 (T). See also:
Santino
Publishers v Waylite Marketing
2010(2) SA 53 GSJ, and also
Ter
Beek v United Resources CC and Another
1997(3) SA 315(c) at 337G.
[12]
1984(3) SA 623 (A).
[13]
See
Silberberg
v Silberberg; Silberberg v Silberberg and Another
[2013] ZAWCHC 5.