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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2009] ZAKZPHC 79
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Ndwandwe v Ndwandwe (AR19/09) [2009] ZAKZPHC 79 (27 July 2009)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
AR19/09
THAMSANQA
WILSON NDWANDWE
…...................................
Appellant
versus
CELUMUSA
DELISILE PURITY NDWANDWE
…..................
Respondent
Judgment
Delivered on 27 July 2009
Steyn J
[1] This is an appeal
against an order of the Magistrate’s Court of Pietermaritzburg
in which it refused to set aside a protection
order in terms of
section 10 of the Domestic Violence Act, No. 116 of 1998 (hereinafter
referred to as ‘the Act’).
The Appellant, who was the
Plaintiff in the court below, applied for the setting aside of the
Domestic Violence Order against him,
obtained by the Respondent, who
was the Defendant in the court below. The application in the
Magistrate’s Court, to set aside
the Domestic Violence Order,
was opposed by the Respondent, as is this appeal.
[2] The Appellant and
Respondent were married at the time when the order was granted, and
they are still married. The Appellant
is an attorney and the
Respondent a magistrate. The reason for mentioning their professions
will become evident later in the judgment.
[3] On behalf of the
Appellant, Mr Quinlan contended that the Respondent either abandoned
the Order or had waived her rights under
it. Furthermore, that good
cause had been shown for the Order to be set aside. In his founding
affidavit the Appellant stated the
following:
“
I assumed that the order had
been set aside as agreed. The Respondent is employed as a Magistrate
at the Pietermaritzburg Court,
could easily gain access to the file,
and do the necessary. I had no reason to believe that she would not
have the order set aside.”
In support of the appeal
it is also contended that the learned Magistrate, in refusing to set
aside the order, erred in deciding
that, for good cause to exist, he
had to find that the agreement between the parties “
was
entered into by the respondent … freely and voluntarily.”
[4] Mr Chetty, on behalf
of the Respondent, argued that the formalities prescribed in section
10 of the Act were not adhered to,
and, in addition, that the
Appellant erroneously relied on an agreement between him and the
Respondent to set aside the Order under
circumstances in which he
ought to have known that the enforcement of such agreement, which is
disputed, to be wholly inappropriate
and dangerous.
[5] The judgment of the
court below makes clear that the learned Magistrate was neither
satisfied that good cause was shown to set
aside the Protection
Order, nor convinced that the required procedures, as set by the
legislature in terms of section 10(2) of
the Act, were met, and hence
the application was dismissed.
[6] In my view, orders
obtained in terms of this Act, keeping in mind the context and
purpose of the Act, are not only distinguishable
from other court
orders, but are
sui
generis
in
nature. The purpose of the Act was dealt with by the Constitutional
Court in
Omar
v Government of the Republic of South Africa and Others
1
and I align myself with
the views expressed by Van der Westhuizen J, 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.”
2
The purpose is also
stated in the preamble of the Act, which reads:
“
It is the purpose of this
Act to afford 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 State give
full effect to the provisions of
this Act, and thereby convey that
the State is committed to the elimination of domestic violence…”
It is clear that the aim
of this Act is to afford victims of domestic violence maximum
protection, which explains the stringent
procedure provided for in
terms of section 10 of the Act.
In
S
v Engelbrecht
,
3
Satchwell
J dealt with 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)
From
the wording of the Act and the provisions relating to orders in terms
of the Act it appears that the legislature was very alive
to the
existing pattern of coercive control in matters of domestic violence
and hence the requirement that a final order should
only be set aside
once the court is convinced that the party who applies for the order
to be set aside is doing so freely and voluntarily.
4
[7] The focal part of
this appeal is the writ granted on 27 September 2005, which ordered
the now Appellant:
“
3.1.2.1 not to commit the
following act(s) of domestic violence: assault, threats of assault,
malicious injury to property;
3.1.2.3 not to enter the shared
residence at: 33 Old New Germany Road, Westville, Pietermaritzburg.”
It is common cause that
the now Appellant consented to the order and agreed to the terms of
the Order. The record, however, also
reveals that the aforementioned
Order was not the first order obtained by the now Respondent against
the Appellant. The previous
Order, it being an interim order, was set
aside by the Respondent. The writ that forms the basis of this appeal
is, however, distinguishable,
since it is final in nature.
[8] Since the formalities
of the Act is determinative of the process, I shall now consider and
examine the provision that governs
the variation of or setting aside
of protection orders granted in terms of the Act.
Section 10
of the
Domestic Violence Act provides
as follows:
Variation or setting aside of
protection order
(1) A complainant or a respondent
may, upon written notice to the other party and the court concerned,
apply for the variation or
setting aside of a protection order
referred to in
section 6
in the prescribed manner.
(2) If the court is satisfied that
good cause has been shown for the variation or setting aside of the
protection order, it may
issue an order to this effect: Provided that
the court shall not grant such an application to the complainant
unless it is satisfied
that the application is made freely and
voluntarily.
(3) The clerk of the court must
forward a notice as prescribed to the complainant and the respondent
if the protection order is
varied or set aside as contemplated in
subsection (1).
[9] It follows from the
said provision that the Appellant had to show good cause in the court
below why the protection Order should
have been set aside and in
doing so whether there was compliance with the prescribed procedures
of the Act. Had the Applicant shown
good cause then evidently the
learned magistrate misdirected himself in his reasoning of the law
and the facts.
The Appellant is an
attorney by profession who claims to know the
Domestic Violence Act,
yet
he ignored the provisions of the Act and wants to convince this
court that not only was he reasonable in his belief that the
Respondent
would have the order set aside, but also that such belief
also constituted good cause.
In my
view there was clearly a dispute of fact after all papers were filed
and that such dispute called for a referral for oral
testimony. The
Appellant, however, despite being burdened with an onus to convince
the Court, decided against tendering oral evidence.
I have
stated the context and purpose of this Act. To my mind the learned
magistrate was quite correct in his approach, to consider
the
provisions of section 10 applicable to this matter.
[10] It cannot, however,
be overlooked that the Respondent never stated in her opposing
affidavit that she denied each and every
allegation made by the
Appellant insofar as it related to the Order that should have been
set aside by her. We have asked Mr Chetty
to address us on this issue
and he had to concede that the affidavit should have contained such
assertion. He, however, asked us
to bear in mind that the affidavit
was drafted under immense time constraints as stated by Respondent in
para 7:
“
As far as the specific
issues raised in the Applicant’s founding Affidavit which due
to time constraints, I am unable to address
individually, I address
as best as I can.”
[11] Having considered
the entire opposing affidavit and its contents, it is evident that
the Respondent intended denying the allegations
contained in the
Appellant’s founding affidavit. This can be gleaned from the
entire affidavit and its tenor. This Court
therefore is mindful of
the fact that the Respondent should not be prejudiced, nor penalised
for something that could at best be
labeled as poor draftsmanship of
the aforesaid affidavit.
[12] There is however
another aspect that requires some comment and that is that the
Appellant lodged a replying affidavit, which
was signed and
commissioned on 18 September 2008 by a certain Phumzile Dlamini, who
is a deputy manager at the Department of Transport.
The very same
commissioner of oaths then commissioned two of the confirmatory
affidavits filed by S Zulu and Nobuhle Mgende and
then deposed to a
statement herself confirming what the Appellant had said in his
replying affidavit. This kind of conduct is frowned
upon, and should
be avoided in future. From the dates of these affidavits it appears
that when Mr Zulu confirmed the contents of
the Appellant’s
replying affidavit on 7 August 2008, the replying affidavit was not
even in existence, because it was only
deposed to on 18 September
2008. Not much turns on this issue, except to expose the careless
preparation of the application in
the court
a quo
.
[13] As stated earlier,
the Appellant failed to comply with the requirements of section 10 of
the Act or to request for oral evidence
to be tendered, and hence the
Court
a quo
was justified in dismissing the application.
Accordingly in the circumstances the appeal should be dismissed with
costs.
_____________________________
Steyn J
Patel J: I concur, it is
so ordered.
_____________________________
Patel J
Date of Hearing: 8 May
2009
Date of Judgment: 27 July
2009
Counsel for the
appellant: Adv PD Quinlan
Instructed by: Mkhize
Attorneys
c/o Lowe & Wills
Attorneys
Counsel for the first
respondent: Adv K P Chetty
Instructed by: Silvia Da
Silva & Associates
1
2006
(1) SACR 359
(CC).
2
Supra
at para [13].
3
2005
(2) SACR 41
(W).
4
Also
see
S
v Baloyi
[1999] ZACC 19
;
2000
(1) SACR 81
(CC) where Sachs J states the following:
[11]
All crime has harsh effects on society. What distinguishes domestic
violence is its hidden, repetitive character and its
immeasurable
ripple effects on our society and, in particular, on family life. It
cuts across
class,
race, culture and geography, and is all the more pernicious because
it is so often concealed and so frequently goes unpunished.
The Law
Commission, supporting the need for appropriate legislation to
reduce and prevent family violence, invoked the following
quotation
from a document drafted by the US National Council of Juvenile and
Family Court Judges:
'Domestic
and family violence is a pervasive and frequently lethal problem
that challenges society at every level. Violence in
families is
often hidden from view and devastates its victims physically,
emotionally, spiritually and financially. It threatens
the stability
of the family and negatively impacts on all family members,
especially the children who learn from it that violence
is an
acceptable way to cope with stress or
problems or to gain
control over another person
. It violates our communities'
safety, health, welfare, and economies by draining billions annually
in social costs such as medical
expenses, psychological problems,
lost productivity and intergenerational violence.
' (Internal
footnotes omitted; my emphasis)