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[2016] ZAGPPHC 1206
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Van der Merwe and Another v Honourable Magistrate Netsooki NO and Another (403/2016) [2016] ZAGPPHC 1206 (27 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, Functioning as MPUMALANGA DIVISION, MBOMBELA
CASE
NO: 403/2016
DATE:
27 October 2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
ZACHARIA
CORNELIUS JOHANNES VAN DER
MERWE
FIRST
APPLICANT
HERMANUS
JOHANNES WESSELS
BOTHMA SECOND
APPLICANT
AND
THE
HONOURABLE MAGISTRATE NETSOOKI
N.O. FIRST
APPLICANT
NTOMBI
KAYISE
ZULU SECOND
RESPONDENT
JUDGMENT
Matter
heard on:
18 OCTOBER 2016
Judgment
handed down on:
27 OCTOBER 2016
LEGODI,
J
[1]
This is the review and setting aside of a decision of a district
court Magistrate sitting at Carolina in terms of which an interim
order granted ex-parte on 9 January 2015 in terms of section 3(2) of
Protection From Harassment Act no. 17 of 2011 (the Act), was
on 6
October 2015 confirmed.
[2]
In terms of section 3(2) of the Act if the court is satisfied that
there is a prima facie evidence that the respondent is engaging
or
has engaged in harassment harm is being or may be suffered by the
complainant or a related person as a result of that conduct
if a
protection order is not issued immediately; and 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, the
court must, notwithstanding the fact that the
respondent has not been
given notice of the proceedings referred to in subsection (1), issue
an interim protection order against
the respondent, in the prescribed
manner.
[3]
Subsection (1) of section 3 provides that the court must as soon as
reasonably possible consider an application submitted to
it in terms
of section 2 (7) and any, for that purpose consider any additional
evidence it deems fit, including oral evidence or
evidence by
affidavit which must form part of the record of the proceedings. In
terms of subsection (7) of section 2, the application
to court for
protection order in terms of the Act must be lodged with the clerk of
the court who must immediately submit the application
and affidavits
to the court. That is what has happened in the present case.
[4]
I do not find it necessary to deal with the merits of the application
in terms of which the interim order which was later confirmed,
seen
in the light of the order which I intend to make hereunder. It
suffices however, to mention that interim order granted ex-parte
that
is, without giving a notice to the respondent or any person likely to
be affected by the order, ought to be granted in very
deserving
cases, for example, where harm is imminent and where indeed if notice
is given, the protection to be accorded by the
interim order is
likely not to be achieved if prior notice of the application is given
to the respondent.
[1]
[5]
The present proceedings have been instituted as a review in terms of
rule 53 of the Uniform Rules based on gross irregularity.
The grounds
of review can be summed up as follows: That the court a quo committed
irregularity by not allowing the applicants to
complete cross-
examination of the second respondent Ms Ntombi Kayise Zulu who was
the complainant in the court a quo. The second
ground appears to be
that the court a quo misdirected itself in not affording the
applicants, Messrs Zacharia Cornelius Johannes
van der Merwe and and
Hermanus Johannes Wessels Bothma the opportunity to adduce further
evidence in rebuttal or to allow the them
to file further affidavits.
The present proceedings have been brought on unopposed basis.
[6]
Brief outline of what preceded the confirmation of the interim order
on 6 October 2015 is necessary. The interim order was to
this effect:
6.1
That the applicants in the present proceedings are prohibited from
engaging in or attempting to harass the complainant (the
second
respondent) in the present proceedings and her family who reside on
the farm in question.
6.2
That the applicants are prohibited from enlisting the help of another
person to engage in the harassment of the complainant
and or related
person and or committing any of inter alia, the following acts:
6.2.1
That the applicants must bring back the remaining cattle to the farm;
6.2.2
That the applicants should not harm any members of the second
respondent's family who reside within the said farm.
[7]
The second respondent had approached the court a quo on the following
alleged incidents or acts: She was residing at Bonnefoi
Misluke farm
together with her family. They had a number of cattle on the farm.
She was the one who was looking after the cattle
as her grandparents
were too old to do anything. Whilst she is staying in Carolina town,
she hired someone to look after the cattle.
The owner of the farm
gave them the permission to live on the farm until land claim was
finalized. On 8 January 2015 at about 8h30
three white male persons
entered the yard at the farm where the grandmother was staying. They
were travelling in two different
vehicles and on the other hand,
there were about three male persons on horses. They opened the cattle
and goats kraal and chased
the goats to roam in the veldt and the
cattle towards the main road where they were loaded into the trucks.
[8]
As I said, I do not have to deal with the merits of the case. The
followings transpired after the granting of the interim order
on 9
January 2015 with the return date being 28 January 2015: On the
latter date, the rule nisi was extended to 10 June 2015. The
applicants opposed confirmation of the interim protection order by
filing an answering affidavit which was served on the second
respondent on 10 June 2016, being the return date of the rule nisi.
On that date, the second respondent was directed by the court
a quo
to give oral evidence and cross -examination by counsel on behalf of
the applicants ensued. In the course of cross-examination
the
presiding officer decided to have the hearing postponed before the
conclusion of the cross examination to allow the second
respondent an
opportunity to get a legal representative and in my view correctly
so, seen in the light of the fact that the answering
affidavit was
served on the second respondent the same date she took the witness
stand. As a result, the proceedings were adjourned
until 7 July 2015
and thereafter to 6 October 2015. Similarly, I do not have to deal
with the issue whether on 7 July 2015 the
rule nisi was properly
extended or not.
[9]
What happened on 6 October 2015 is the subject of great concern in
the present proceedings. Neither of the respondents is represented
in
these proceedings. Whilst the second respondent filed notice to
oppose, she however failed to file opposing affidavit. Instead
she
delivered a notice of withdrawal of her opposition to relief sought
by the applicants, which relief is couched as follows:
"1.
That the order of the First Respondent and proceedings before him
under case number 1\4\29-01\2015, also referred to as
case number
1\2015, in the Mpumalanga Court for the district of Carolina, be
reviewed and set aside;
2.
That the order of the First Respondent under case number
1\4\29-01]2015 be replaced with the following order:
"The
application is dismissed and the rule nisi discharged with costs."
3.
In the alternative, and only if the Honorable Court is not inclined
to grant prayer
2,
that the proceedings be referred back to
the magistrate's court in Carolina to be decided by
a
different
Presiding Magistrate;
4.
That the second Respondent is ordered to pay the costs of the
Application and that the First Respondent is ordered to pay the
costs
of the Application, only in the event of opposition by him.
5.
That further and\or alternative relief be granted".
[10]
Subsection (2) of section 9 of the Act provides:
"If
the respondent appears on the return date and opposes the issuing of
the protection order, Court must proceed to hear the
matter and:-
(a)
Consider any evidence previously received in terms of section 3(1)
and;
(b)
Consider any further affidavit or oral evidence as it may
direct, which must form part of the record of the proceedings"
[11]
The underlining is my emphasis. The Court a quo on the return date of
10 June 2015 proceeded to hear and elected to consider
oral evidence
of the second respondent who was the complainant in that court. It
also allowed or directed cross -examination of
the second respondent
and adjourned the matter as indicated in paragraph 8 above before
conclusion of cross -examination or evidence
of the second
respondent.
[12]
However, when the hearing resumed on 6 October 2015, the court a quo
refused any further cross-examination of the second respondent
and
articulated its reasoning as follows:
"
Yes what I am trying to say, Mr van Dyk, is this:
The
Applicant was not actually testifying in the true sense. Let me put
it more clear. She was confirming the affidavit that she
has made
which prompted the Court to grant an interim order. She was
confirming that after it, which is before Court. The affidavit
was
furnished,
a
copy of the application together with the interim
application was furnished to the respondent what the time when they
served with
the interim protection order.
So
therefore in
terms of the law, in terms of Act 17 of 2011- that is the Act of
harassment-then on the return date she, the Applicant,
has the
following to do: The Applicant must be taken to the stand in order to
confirm the allegations that she has made in her
application which
prompted the Court to grant an interim order in her favour. And then
that in itself would understand the defence
when you say from your
point of view you regard that she was defending her application which
is now evidence. Is that what you
are saying?".
[13]
For two reasons, the reasoning is flawed: The statement:
'in terms
of the law, in terms of Act 17 of 2011- the applicant must be taken
to the stand in order to confirm the allegations that
she has made in
her application which prompted the Court to grant an interim order in
her favour,'
is clearly not the correct interpretation of the
relevant provisions of the Act.
[14]
Section 9(2) as quoted in 10 above is very clear. The court has
discretion to direct the hearing of oral evidence. The court
is not
obliged to do but, rather it should be guided by the nature of
evidence placed before it by way of 'affidavits previously
received'
when it granted the interim order and any other 'further affidavits
it received subsequent thereto', for example, the
answering affidavit
as it was the case in the court a quo. It had the second respondent's
affidavit upon which the interim order
was granted and the answering
affidavit delivered on 10 June 2015 when the application was heard
for the first time. Should there
be an issue relevant and not
captured or not adequately stated in the affidavits, the court
hearing the application would be entitled
to direct for the hearing
of oral evidence. When that happens, the other party should be
entitled to cross -examine the witness
up to the end. In certain
circumstances the court can limit the extent not only of the cross
examination but, also of the
evidence to be adduced viva - voce. In
the instant case, the oral evidence was not limited to any specific
issue and therefore
the cross-examination could not have been limited
or terminated.
[15]
So, the first determination in the exercise of discretion to direct
or allow viva-voce evidence is the nature of the evidence
which is
relevant but not properly captured in the affidavit or on which a
dispute arises which can be disposed by a limited oral
evidence and
cross-examination. Otherwise to turn the whole proceedings into a
fully blown trial will defeat the speedy remedy
envisaged in the Act.
[16]
Furthermore, the statement:
'the applicant
was
actually not
actually testifying in the true sense- she
was
confirming the
affidavit that she
has
made which prompted the court to grant
an interim order. She
was
confirming which
is
before
the court',
in also wrong, insofar as it meant to suggest that,
that is what the Act provides.
[17]
The second respondent in her application for the issue of an interim
protection or harassment order deposed to an affidavit
before
commissioner of oath in which she acknowledged to understand the
contents of her declaration\affidavit and thus making it
unnecessary
to confirm her declaration or affidavit again. It is just not correct
that
'the applicant must be taken to the stand in order to confirm
the allegations that she had made in her application which prompted
the court to grant an interim order in her favour'.
[18]
So having directed the second respondent to take the witness stand,
having sworn her in and allowed cross-examination and postponed
the
hearing whilst cross-examination was not completed, on resumption of
the proceedings, the attorney for the applicant should
have been
allowed to complete cross-examination. To refuse completion of cross
examination, but still have regard to the second
respondent's
evidence or part thereof, amounted to gross irregularity. The court a
quo denied the applicants of their right to
have the dispute be
resolved by the application of law decided in a fair public hearing
as they were denied to fully challenge
the evidence which was
ultimately considered in some respects against them
[2]
.
[19]
There was another request which was made, but declined. In the course
of oral argument in the court a quo, the attorney for
the second
respondent was said to be arguing a case not made out the papers. To
this, the court a quo stated:
" ...the application for
postponement is now surfacing and given the nature of the application
and the addressed that I heard
from both parties, the application for
a
postponement as made by Mr Van Dyk is hereby refused."
[20]
There is a background to this postponement application: The court a
quo allowed the defence to argue the case on facts which
were not in
the papers. There were only two set of affidavits before the court a
quo. That is, an affidavit on which an interim
order was obtained and
answering affidavit filed on the date of the hearing of the
application on 10 June 2015 when the oral evidence
of the second
respondent was directed. The second respondent in her affidavit made
mention of her grandmother who was allegedly
under harassment by the
applicants.
[21]
However, in argument by the second respondent's attorney a mention
was made of a grandfather who was allegedly under threat
or
harassment by the applicants. That prompted the applicants' attorney
to object and or to ask for a postponement to be allowed
to file
supplementary affidavit. The court a quo declined and in its main
judgment stated:
"If
this court has to conclude that the grandfather or the grandparents
in question is a person that is over 80 years, this
Court may also be
tempted to say that he may be a bit incapacitated in terms of action
or movements, even if we can go for a marathon
this court can outrun
such a person because of the power that it has, including both
Defence counsel which I believe none of them
is over 80 years or 70
years. But I am not making that a conclusive conclusion, but it is
just a perception based on a laymen's
focal point. So therefore the
Act made provisions to the fact that a person may on behalf of
another make an application, which
application include an application
for protection against harassment or an application against domestic
violence. In this regard
we are dealing with a harassment
application. So therefore the Applicant in this regard is entitled by
virtue of the relationship
to make an application on behalf of her
grandparent in this court and the court is therefore duty bound in
terms of this Act to
make an order which may therefore be in the
interest of the Applicant, which in the civil nature may be referred
to as ex parte
application as it is an interim application.”
[23]
Then the court a quo concluded by expressing itself as follows:
"...
the respondent in any way should not
harass
the
Applicant and her relative
who has now been clearly
defined.
to wit the grandfather who resides on the
farm...”
[24]
The difficulty with the ruling and finding by the court a quo in this
regard is that the applicant did not file replying affidavit
neither
did the court a quo allow the oral evidence of the second respondent
to be completed and by so doing made such evidence
a futile exercise
insofar as the court a quo might have wanted to have any regard
thereto. To allow such evidence and other averments
made during
argument, without giving the applicants an opportunity to challenge
the evidence, flouted the applicants' right to
a fair hearing and
thus amounted to gross irregularity.
[25]
Coming to the relief sought, the applicants in a draft order proposed
that the decision by the court a quo should be reviewed
and set
aside. In addition they want the matter to be referred to the court a
quo to start de novo before another judicial officer.
I do not think
that a case for de novo hearing before another magistrate has been
made.
[24]
The critical concern in these proceedings is the court a quo refusal
to allow the attorney for the applicants to complete the
cross
examination of the second respondent. If that had happened, it could
well be that the court a quo might have directed to
hear the oral
evidence of the applicants in which event the need to file any
supplementary affidavit would not have been necessary.
Both parties
would have had the opportunity to ventilate issues relevant to the
essence of the dispute, although a fully blown
type of a trial under
the Act is not encouraged. Put differently, the proceedings in the
court a quo are part heard and there
will be no need to cause
the case to start de novo. A case has not been made for a de novo
hearing.
[25]
Consequently an order is hereby made as follows:
25.1
The order of the first respondent (Court a quo) refusing the attorney
for the applicants to complete cross-examination of the
second
respondent, allowing arguments on matters not made in the papers,
refusal of postponement to file supplementary affidavit
and
confirming the interim order made on 9 January 2015 in terms of
section 2 of Act 17 of 2011 are hereby reviewed and set aside.
25.2
The matter is referred to the court a quo to enable the applicants'
attorney to complete the cross examination of the second
respondent
and thereafter to direct the proceedings to continue as the Court a
quo may deem necessary and appropriate, such consideration
to include
but not limited to affording the applicants the opportunity to tender
oral evidence or to file an affidavit to deal
with new relevant
evidence that might have been raised during the oral evidence of the
second respondent.
25.3
The second respondent to pay the costs of the unopposed application
on a party and party scale.
__________________________
MF
LEGODI
JUDGE
OF THE HIGH COURT
[1]
See subsection (2) (c) of section 3
[2]
See section 34 of the Constitution .