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[2011] ZAKZDHC 44
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N.R.G.B v A.I and Another (4597/2011) [2011] ZAKZDHC 44 (24 May 2011)
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Certain
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IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC
OF
SOUTH AFRICA
CASE NO: 4597/2011
In the matter between:
N[….] R[….] G[….]
B[….]
APPLICANT
AND
A[….]
I[….]
FIRST RESPONDENT
MINISTER
OF SAFETY AND SECURITY
SECOND RESPONDENT
HEARD
ON:
24 MAY 2011
ORDER
MADE ON:
24
MAY 2011
JUDGEMENT
RADEBE J
1.
On 10 May 2011 the Applicant launched an application on an urgent
basis
for
an order in the following terms:
1.1
That the Second Respondent and
all members of the South African Police Services (SAPS) are hereby
interdicted and restrained from
carrying into execution any warrant
of arrest in respect of the Applicant issued at the instance of the
First Respondent out of
the Magistrates Court for the district
of Inanda, held at Verulam, pursuant to an interim protection
order granted
by that Court on 5 May 2011 under Case No. 1150/2011,
or any other such warrant under any other such protection order,
pending
the final determination of the issues in dispute between the
applicant and the First Respondent in such proceedings by such Court.
Page 2
1.2
That the First Respondent be
and is interdicted and restrained from seeking to implement, or
threatening to implement, the Applicant’s
arrest pursuant to
any such warrant, pending the final determination by the relevant
Magistrate’s Court of the aforesaid
issues.
1.3
That the First Respondent pay
the Applicant’s costs of these proceedings as between attorney
and client.
The First
Respondent opposes the application on grounds of public policy and
merits of the Applicant’s case. I shall
refer to the
Applicant and the First Respondent as “the parties”,
whenever I refer to both of them.
BACKGROUND
2.
The parties were married to each other out of community of property,
subject
to accrual, on 11 March 2005 and such marriage still subsists.
On
4
April 2011 the First Respondent instituted divorce proceedings
against
the
Applicant, by virtue of the combined summons issued out of this
Honourable
Court under the present case number. There is only one
minor
child born of the marriage, namely S[….] J[….] B[….],
a girl born
on
23 August 2008.
3.
When the present application was launched, the parties were still
living
together
at No. [….] Durban (”the
matrimonial
home”). The Applicant subsequently moved out of the
matrimonial
home on 6 May 2011 after the aforesaid interim protection
order
was served on him. The Applicant alleges in paragraph 14 of his
Founding
Affidavit that he saw it proper to move out in order to ensure that
he
is not arrested at the whim of the First Respondent.
Page
3
He
further alleges that the First Respondent has, on
numerous previous occasions, alluded to the fact that she would
have
no qualms in having him arrested and placed in prison.
The
terms of the interim protection order are as follows:
“
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: physical and verbal abuse.
3.1.2.2
not
to enlist the help of another person to
commit
the acts of domestic violence specified
in
paragraph 3.1.2.1”
There
are no additional orders that were granted. The return date for
either confirmation or discharge of the order is 8
th
July
2011. Paragraph 5.6 of the order reads as follows:
“
5
.1
The Respondent is hereby informed of his/her right to appear in the
Magistrates Court at Room 12
Verulam on the 8
th
day of July 2011 at 8:30 in order to give reasons why the interim
protection order should not be confirmed and made final; and
of
his/her right to have the matter heard on an earlier date after at
least 24 hours written notice to the applicant and the aforesaid
court.
5.2
The Respondent is further informed
that if he/she does not appear in court on the above-mentioned
date
and time, and the court is satisfied that this notice was properly
served on him/her, and is satisfied that he/she committed
or is
committing an act of domestic violence, the order will be confirmed
and made final.”
Page
4
5.
At the time of the launching of this application (on 10 May 2011) and
at the
time
of the hearing thereof (24 May 2011) no warrant of arrest had been
issued
pursuant to the granting of the interim protection order. It is
common
cause that neither the First Respondent nor members of the
SAPS
had made any attempts to have the Applicant arrested.
It is also common cause that the
Applicant has not availed himself of the
opportunity granted to him to
anticipate the return date of 8 July 2011 on
24 hours written notice as envisage in
paragraph 5.1 of the Interim
Protection order of the Verulam Court.
ISSUES
OF COMPETENCE
6.
The crisp issue is whether this Honourable Court is competent to
issue the
order
sought by the applicant. It is evident from the Applicant’s
submissions
that he launched this application based on his fear that he
might
be arrested at the “whim of the First Respondent”.
He alleges this
despite
the fact that no warrant of arrest was issued by the Magistrate’s
Court,
Verulam.
7.
The merits of the Domestic Violence application that is pending
before the
Verulam
Magistrate’s Court cannot be dealt with by this court.
The
Applicant
placed heavy reliance on the judgement of the Honourable Mr
Justice
Swain on the unreported case of Shadrack Dladla v Thandeka
Dladla
and Another case No. 15286/2010 which is completely
distinguishable
from this present application in that the former being based
on
financial abuse and the First Respondent, Thandeka Dladla, had
not
disclosed
certain material facts when she approached the Pinetown
Magistrates
Court and obtained an interim protection order. In the Dladla
case,
the First Respondent was found to have obtained the Interim order
based
on
mala fides
and
in an improper way.
Page
5
8.
The relief sought by the Applicant is extraordinary and may have
far-
reaching
public policy implications for victims of domestic violence. The
aim
of the Domestic Violence Act No. 116 of 1998 (“the Act”)
is stated in
its
preamable as follows:
“
to
afford the victims of domestic violence the maximum protection
from domestic abuse that the law can provide; and to introduce
measures which seek to ensure that the relevant organs of the state
give full effect to the provisions of this Act”.
Domestic
violence is defined in the Act as:
“
physical
abuse, sexual abuse, emotional, verbal and psychologal abuse,
economic abuse, intimidation, harassment, stalking, damage
to
property, entry into complaint’s residence without consent
where the parties do not share the same residence, or any other
controlling or abusive behaviour towards a complaint, where such
conduct harms, or may cause imminent harm, to the safety,
health or well-being of the complainant”.
It
is clear therefore that domestic violence is not a crime, and
domestic violence cases are regarded as civil cases. There
is
no specific crime of domestic violence. Arrests based on
incidents of domestic violence can only be effected by members
of
SAPS only upon a warrant of arrest issued
in
terms of section 8 of the Act, alternatively i.t.o. Section 3 of the
Act.
9.
The putting into effect of a Warrant of Arrest i.t.o. section 8 of
the Act
cannot
be done arbitrarily. Subsection 8(1) of the Act provides as
follows:
“
Whenever
a court issues a protection order, the court must make an order-
(a)
authorising
the issue of a warrant for the arrest of the Respondent, in the
prescribed form; and,
Page
6
(b)
suspending
the execution of such warrant subject to compliance with any
prohibition, condition, obligation or order imposed in te
rms
of section 7”. (of the Act)
An
interim protection order is issued in terms of section 5, and a final
protection order is issued in terms of section 6 of the
Act.
Section 5(7)(b) of the Act makes provision for the issuing of the
warrant of arrest as follows:
“
Upon
service or upon receipt of a return of service of an
interim
protection order, the clerk of court must forthwith
cause
a certified copy of the interim protection order, and
(b)
the original warrant of arrest contemplated in section
8(1)(a)
to be served on the complaint.
10.
In casu
,
no such warrant was issued at all. There is no explanation by
the
clerk
of court, or Ms David, as to why the provision of section 8(1) and of
section
5(7)(a)&(b) have not been complied with. Even if issued, it
would
have
to be served upon the First Respondent (as complainant) pursuant
to
section 5(7)(b)- and not upon the Applicant. A copy of a
Warrant of
arrest
would then be forwarded to SAPS by virtue of Section 6 (6).
Further
section 8 of the Act does not provide for arbitrary arrest in that
the
warrant
of arrest comes into effect only once it is served on the
Respondent.
In
this case there is no evidence that any copy of such warrant was
available
to be served on either the complainant –as envisaged in section
5(7)(b)
of the Act-or upon the Respondent, as envisaged in section 5(5)(a)
of
the Act. The Clerk of Court then forwards a copy of the warrant
of
arrest
and a copy of the protection order to the police for execution in
terms
of section 6(6) of the Act. Counsel for the Applicant referred
to the
case
of
Narodien vs Andrews
2002
Jol 9240(c)
at page 13.
That case is
distinguishable in that a warrant of
arrest had been issued pursuant to
section
8 of the Act.
Page
7
11.
I refer to the case of
Ex Parte Omar, 2006(2)SA 284 (in re: Omar v
Government
of the Republic of South Africa & Others)
where
the following
was
held:
“
...that
section 8 did not provide for arbitrary arrest in that the warrant of
arrest only came into effect once it was served on
the Respondent”.
The
Verulam Magistrates Court has not issued any warrant of arrest.
The
Applicant’s allegation that he
could be arrested at the whim of the First
Respondent does not have a valid
basis. Such apprehension is in his
mind.
The Second Respondent would have no right not to act if a warrant
had
been issued. Once a warrant has been issued, the police have to
serve it and execute it on good cause
shown. There can be no arbitrary
arrest.
12.
Section 3 of the Act empowers police officials to arrest at the scene
of
domestic violence without a warrant if
there is a reasonable suspicion that
an
offence committed has elements of domestic violence. There is
therefore no basis upon which the
police would simply arrest the
Applicant at the whim of the First
Respondent. Even at an instance where
the
First Respondent calls the police under the guise that domestic
violence is being perpetrated by the
Applicant, the police officials would
have to exercise their discretion (not
of the First Respondent) in
determining whether there were
reasonable grounds to suspect that
imminent harm to the complainant might
result upon the alleged breach
of
the terms of the (interim) protection order. In Ex Parte Omar
(supra) it
was
held that:
“
the
requirement of an appearance of reasonable grounds for suspicion was
no less objective a test than (for example) the required
existence of
a reasonable suspicion.”
Page
8
13.
The apprehension by the
Applicant that he can be arrested at the whim of
the
First Respondent is unreasonable. He is not entitled to
approach this
Honourable Court based on such
subjective and psychic belief that he
could
be arrested even if he has not committed any act of domestic
violence. Section 8(4)(a)
provides as follows:
“
a
complainant may hand the warrant of arrest together with an
affidavit in the prescribed form, wherein it is stated that
the
respondent has contravened any prohibition, condition, obligation or
order contained in a protection order, to any member of
the SAPS.”
There is therefore a prescribed and
definitive procedure to be followed.
Police have to use their
discretion-not the discretion of the First
Respondent. In the matter of
Carmichele v Minister of
Safety and
Security & Another
(Centre for Applied Legal Studies Intervening)
2001(4) SA 938 (CC)
at 965 A
it was said:
“
South
Africa has a duty under international law to prohibit all
gender-based discrimination that has the effect or purpose of
impairing
the enjoyment by women of fundamental rights and freedoms,
and to take reasonable and appropriate measures to prevent the
violation
of those rights. The police is one of the primary agencies
of the state responsible for the protection of the public in general,
and women and children in particular, against the invasion of their
fundamental rights by perpetrators of violent crimes”.
14.
The applicant wants this court to interfere with and circumscribe the
statutory powers of the police.
This Court cannot condone such
misguided approach by the Applicant,
to stop that which is designed to
curb domestic violence. I
refer also to the case of
S
v Chapman
1997(3)SA 341(A) at 345C-D.
Page
9
“
The
Courts are under a duty to send a clear message to the community.
We are determined to protect the equality, dignity and
freedom of all
women, and we shall show no mercy to those who seek to invade those
rights”
Applicants’ attempts to
interdict and restrain the issuing and execution
of the warrant (if the situation calls
for that is tantamount to saying
that) the First Respondent should be
deprived of her right to freedom and
security, which includes the right to
be free from all forms of violence
from either the public or private
sources. In this respect I refer to
S
v
Baloyi (Minister of Justice and
Another, Intervening 2000(2) SA 425(CC)
wherein the provision of section
12(1)(c) of the Constitution Act, 108 of
1996 were re-instated. A court will
not ordinarily grant an interdict in a
mala fide
or negligent manner of this nature unless there is proof that the
powers have been exercised.
15.
The applicant submits that he has a choice of remedies by which to
have
the
Respondent prevented from executing a warrant of his arrest.
His
choices, so he submits, are that
he could follow the procedure set out in
Regulation 5 of the Act or he could
move an application in terms of Rule 6
of
the Uniform Rules. The Applicant seems not to have considered
paragraph 5 of the Interim Protection
Order as well as the provisions of
section 5(5) of the Act, which
provides that an interim order may be
anticipated. It states thus:
“
the
interim order must then be served on the Respondent. It must
call upon the Respondent to show cause on the return date
specified
in the order why a final protection order should not be issued.
The return date may not be less than 10 days after
the service upon
the respondent. It may, however, be anticipated by the
respondent upon not less than 24 hours’ written
notice to the
complainant and the court.”
Page
10
16.
The Applicant has not
anticipated the return date of 8 July 2011. Instead
he
approached this court even prior to the issuing of the Warrant of
Arrest
by
the Verulam Magistrate’s Court.
He
refers this court to the Affidavit of Jennifer David who is the
official who
deals
on “
a face-to-face
basis with parties involved in applications for
Protection Orders in the office of
the Clerk of the Court for Domestic
Violence
Court
”
(see para 3)
of David’s supplementary affidavit). In
paragraph 5 of her affidavit, David
states as follows:
“
With
regard to the question of anticipating the date set out in the
Protection Order, I explained that the procedure is the following.
Firstly, the person who wants to bring the date forward must attest
to an affidavit giving his or her reasons for wanting to do
so.
That person must then organise service on the other party (and
provide proof of this). If the application is opposed
by the
other party, then the matter is again adjourned to allow the parties
to exchange affidavits. By that time, the date
on which the
matter is to be heard will be later than the original date given in
the Protection Order because the diary will have
filled up.”
However, from the contents of the
above paragraph, the Applicant was
never
precluded from anticipating the return date. On the contrary, the
Applicant
is disgruntled and his displeasure is based on what he perceives
to
be a slow process of the domestic violence courts.
17.
Counsel for the Applicant further relies on the case of
Robinson v
Rossi
1996(2)
All SA 349(W)
as authority
for the general proposition that a
Applicant
has a choice of remedies by which to have the interdict
amended
or set aside. However in the case of Robinson vs Rossi the
applicant
had obtained an interdict i.t.o. the now-repealed
Prevention of
Family
Violence Act No.33 of 1993
. Such interdict had been obtained
in
the then Supreme Court-not at the Magistrates Court. The
following
was
said at p374 D, (per Stegman J).
Page
11
“
I
conclude that the position of a Respondent against whom an interdict
and an associated warrant of arrest have been issued out
of the
supreme court in terms of
sections 2(1)
and
2
(2) of Act 133 of 1933
is that he has a choice of remedies by which to have the interdict
amended or set aside as contemplated by
section 2(2)(c). First,
he has the new remedy provided by regulation 5 of the Prevention of
Family Violence Regulation, 1993.
If
the interdict was issued by a magistrate and the respondent wishes to
obtain relief from a magistrate, it may be that regulation
5 provides
the only available remedy. However that question does not arise
in the proceedings
and
it is unnecessary to decide what the position in that regard may be
.
For purposes of the present case. I hold that the regulation 5
does not have the effect of ousting this court’s
jurisdiction
to entertain an application moved in terms of rule 6 of the Uniform
Rules to amend or set aside such an interdict
and
the associated warrant of arrest
;
and I hold accordingly that a respondent against whom such an
interdict has been issued, and such a warrant of arrest authorised,
has not been deprived by regulation 5 of his procedural right to
approach this court in the manner provided by rule 6 of the uniform
rules.”
18.
The distinguishing features of the
Robison vs Rossi case
from
the
present application are that in
Rossi
case
:
18.1
the interdict and the warrant
of arrest had been issued
out of the supreme court;
18.2
the warrant of arrest has
been issued and authorised.
The
Domestic Violence Act has
repealed
the
Prevention of Family
Violence Act although
Regulation 5
of
1993 still remains. In terms of the
Domestic Violence Act an
application
for a protection order must be
brought in the Magistrates court and
it is that court that the Applicant
ought to approach to set aside or vary
any provision of a protection
order.
Page
12
MERITS
19.
The Applicants submits that he has a
prima facie
right to the
relief sought.
He bases his submission in this regard
on the premise that the interim
protection order was improperly
obtained by the First Respondent. He
alleges that (i) there was no
basis for the grant of the order;
(ii) it was improperly sought
without giving notice; (iii) it was obtained
with improper motive, to impose the
acceptance of extortionate financial
demands be made by the First
Respondent in the impending
Rule 43
Application.
In terms of section 5 of the Act, the
court must as soon as reasonably
possible consider the application.
At this stage of the proceedings the
Respondent need not be informed of
proceedings.
The Act regulates the circumstances in
which the court has to grant an
interim order without notice to the
Respondent if the court is satisfied
that::
19.1
There is
prima
facie
evidence that the
respondent is
committing or has committed an act of
domestic violence;
19.2
that undue hardship may
be suffered by the complainant as a result of the violence if an
order is not issued immediately.
20.
The Applicant has attached a copy of the First Respondent’s
Affidavit
which she submitted in support of her
application for the protection order-
Annexure ‘NB³’.
From the averments therein, there appears
prima
facie
,
that there was justification in
granting the interim protection order. This
court cannot adjudicate upon a matter
already adjudicated upon by
another court, save in matters
concerning review applications or appeals.
The Applicant is not without
other alternative remedies. He could do one
or more of the following:
Page 13
20.1 anticipate the
return date of the interim order;
20.2 appear on the
return date i.e 8 July 2011 as provided i.t.o. section 6(2);
20.3 institute
review proceedings;
20.4 respond on
affidavit, to First Respondent’s Affidavit made at Verulam
Court.
21.
I have already dealt with the unreasonableness of the Applicant’s
subjective fear of being arrested at
the whim of the First Respondent.
Therefore
the Applicant’s contention that if the relief sought is not
granted
he has a very real fear of arbitrary
arrest is unfounded. The Applicant
has other remedies, should he be
arrested, and these are the various
protections guaranteed to him by
provisions of section 35 of the
Constitution Act. That
would cater for his personal dignity and other
legal rights, including the right to
be admitted to bail. In any event, the
Applicant has not identified the
nature of the irreparable harm he would
or might suffer if the order is not
granted.
22.
Finally, the balance of convenience does not favour the Applicant.
He has various avenues open to him.
He has also the safeguards of
sections 8(4) and 8(5) of the Act.
Applicant has a further guarantee that if
the First Respondent has deposed to an
affidavit based on untruths, he
could institute proceedings to have
her (First Respondent) held criminally
liable for intentionally making false
allegations.
23.
In the result, I make the following order:
23.1
The Application is
dismissed.
Page
17
23.2
The Applicant is ordered to pay
the costs on an attorney client scale.
Signed:
_____________________
Date ________________
RADEBE
J
COUNSEL
FOR APPLICANT
: R. SICHEL
INSTRUCTED
BY
: V. O’CONNEL INC.
COUNSEL
FOR FIRST RESPONDENT : E.S. LAW
INSTRUCTED
BY
: TATE NOLAN & KNIGHT INC.