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[2024] ZALMPPHC 51
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G.D v N.B (HCAA26/2023) [2024] ZALMPPHC 51; 2025 (1) SACR 179 (LP) (20 May 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
FAMILY
– Domestic violence –
Protection
order
–
Appellant’s
marriage to sister of respondent creates existence of domestic
relationship by affinity – Acts of
violence –
Intimidation – Controlling behaviour – Psychological
abuse – Locking farm gates –
Entry to family farm
without consent – Denial of conduct – Appellant failed
to raise a real, genuine or bona
fide dispute of fact –
Decision to issue final protection order justified – Appeal
dismissed –
Domestic Violence Act 116 of 1998
,
s 1.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCAA26/2023
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED
DATE:20
May 2024
In
the matter
between:
G[…]
W[…] P[…] D[…]
:
APPELLANT
And
N[…]
B[…]
:
RESPONDENT
JUDGEMENT
Heard
on
08 MARCH
2024
.
The date
and time
for
hand-down is
deemed to be
on
the 20 May 2024
at
10
:00.
This
judgment handed
down
electronically
by circulation
to
the parties'
representatives
by email and
publication and release
to
SAFLII.
DEANE
AJ:
Introduction
1.
The
Appellant appeals against the whole of the judgment of a final
domestic violence order handed down by the Magistrate HD Swart
on 6
June 2023.
[1]
2.
The essence of
the appeal is founded on the following grounds
:
2.1
Whether
a domestic relationship existed between the parties as contemplated
by
section 1
of the
Domestic
Violence
Act
116 of
1998
;
[2]
2.2
Whether
the Magistrate erred in not considering an application for striking
off irrelevant/ scandalous/ vexatious material from
the record;
[3]
2.3
The
Magistrate erred in finding that the Appellant committed acts of
domestic violence
[4]
in
that the
:
2.3.1
Respondent
did not prove
the requirements to obtain a final order and
;
2.3.2
Magistrate
incorrectly applied the principles set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
[5]
regarding
final
in
terdicts
and orders
.
3.
The
Respondent's
appl
i
cation
for a protection order was predicated
on the
following factual matrix
.
4.
The
Respondent
is one
of
four
daughters
of the late
N[…]
J[…]
B[…]
(NJ B[…])
,
who passed
away on 20 January 2022 at the age of 91 years
.
5.
The Appellant
is married
to C[…]
D[…]
,
the
siste
r
of the
Respondent
a
n
d
one of the
four daughters of NJ B[…].
6.
In the last
will and testament of NJ B[…]
,
all four
daughters were nominated as Executors together with Jan Boshoff an
auditor and friend of the deceased
.
7.
The family has
a fami
l
y
trust that had been registered
since
1981
.
After the
death of NJ B[…]
,
the Appellant
and his wife C[…] D[…] are the remaining trustees.
8.
In January
2019
,
and
before his death
,
an agreement
was entered into by the Appellant and NJ B[…], whereby NJ B[…]
allowed the Appellant to manage the affairs
of both him and the
family trust.
9.
On or about 6
October 2022 the Executors by majority resolved that the Appellant's
administration of the estate of NJ B[…]
would be terminated as
it had the
n
become the
responsibility of the Executors to wind up the estate
.
The Appellant
was given notice on or about 7 October 2022 and was advised that his
services would be terminated on 31 December 2022.
10.
The result of
the termination
of the
Appellant's
service
for the estate
was
that he could
no longer conduct hunting activities on the farms or deal with the
cattle or other assets
.
Furthermore
,
the Appellant
was no longer required and allowed to be involved with the
administration of the estate matters and was only
r
equired
to do a handing over to one of the other sisters
,
M[…]
O[…]
,
who it was
decided would further manage the farms
.
11.
On 15 December
2022 Jan Boshoff
,
in his
capacity as executor
,
sent a letter
to the Appellant
inviting the
Appellant
to
engage
all
the Executors
in January
2023 regarding
the Trust.
12.
During
December 2022 there was also an agreement reached whereby the
Appellant and his wife C[…] D[…] would
,
by 7 January
2023
,
remove
all the Appellant
'
s
personal belongings that were at the Seringhoek farms and cause a
handover of the administrative duties
.
13.
On 16
January
2023
the
Appellant
and
C[…]
Delport
returned
from
the
farms
but
failed
to remove the personal belongings.
14.
M[…]
O[…]
,
one of the
sisters of the Respondent, acting on behalf of the majority Executors
then sent an email correspondence to C[…]
D[…]
reminding her of the termination letter of 31 December 2022, as well
as that there was not an official handover by
the Appellant as was
requested and required.
15.
The Appellant
subsequently
returned to
the farm on
Friday 20 January 2023.
16.
It is common
cause that during the period of 16 January
2023 and 26
January
2023
the Appellant and the Respondent shared the farmhouse at Seringhoek.
17.
It
is also common
cause
that the
alleged acts of violence relevant
to the
application for a protection order occurred during the period of 16
January 2023 to 26 January 2023 and that the actions
complained of
occurred at the farm Seringhoek, a property belonging to the deceased
estate of NJ B[…]
.
18.
The
Respondent indicates that it was during this period and on Seringhoek
where
the Appellant was involved in the following acts of violence;
intimidation, controlling and abusive behaviour, psychological
abuse,
locking the farm gates and restraining the Respondent from entering
the
property
,
accessing
the family farm without consent, continuous threats and economic
abuse.
[6]
19
.
I
now turn to an analysis and discussion of the specific grounds of
appeal.
In
re: Domestic Relationship
20.
The
first ground of appeal in this matter concerns the finding by the
Magistrate that a domestic relationship as defined in
section 1
of
the
Domestic
Violence Act
(OVA
),
existed
between
the
Appellant
and
the
Respondent.
The
reasons
given
for
the
alleged
error
are
that:
[7]
20.1
The Respondent
and the Appellant do not share a household
;
20.2
The Respondent
and the Appellant reside in different addresses;
20.3
The Respondent
and
Appellant
is in no
way
part
of
the
same
family
unit
as
contemplated
in the Act;
20.4
The Respondent
and Appellant
have not in
any
other
way complied with the term '"domestic relationship'
as
contemplated
and defined in
the Act".
21.
The
Appellant's contentions are securely founded upon the decision in
Daffy
v Daffy
[8]
(Daffy)
wherein the Supreme Court of Appeal (SCA) considered the concept of a
"domestic relationship"
,
and
they also reference the case of
S
v
Baloyi (Minister of Justice and another)
[9]
(S
v
Baloyi)
which
deals with a breach of a domestic violence interdict.
22.
The
Appellant herein contends that although
Daffy
and
S
v
Baloyi
were
considered before the amendments that were promulgated in the
Domestic
Violence Amendment Act 14 of 2021(DVAA),
the
applicable part of the definition which was considered
in
the
Daffy
matter
was
not
amended
and
that
the
"only
part
of
the
definition
of
'domestic relationship
'
which
was amended was the addition of the phrase
"
they
are persons in
a
close
relationship
"
in
respect of paragraph (f) of the definition, paragraph (d), the
applicable paragraph, was not amended at all”,
[10]
and
furthermore that a
"'domestic
relationship
'
encompasses
a
much
closer family unit, rather than
a
mere
relationship"
.
[11]
23.
The
Respondent argues that the inferences by the Appellant
"is
not
only factually incorrect, but that
,
on
a proper interpretation of the Daffy-matter,
the
Respondent did prove on
a
balance
of probabilities
a
domestic
relationship
between
the parties"
.
[12]
Due
to this reliance on the
Daffy
case,
it becomes appropriate to first consider the main principles of that
matter.
24.
The
facts of the
Daffy
matter
in brief involved two brothers (both businessmen)
who
did not share a common household but whose main interests were
business
r
elated
.
Much
of the dispute involved thei
r
interests
in the company
Core
Mobility (Pty) Ltd
.
The
Appellant (Cristopher Redden Daffy) had worked at Core Mobility for a
period of about ten years until a disciplinary enquiry
resulted in
the te
r
mination
of his employment. Prior to the termination of his employment
,
the
relationship between the brothers soured
,
with
the Respondent (Stephen Redden Daffy) suspecting the Appellant of
committing irregularities and abusing his position. This
resu
l
ted
in arguments between them and on one occasion the Appellant
threatened
to
assault and financially ruin the Respondent
,
[13]
and
which led to the Respondent seeking a protection order aga
i
nst
the Appellant. The court agreed that in order to obtain a protection
order in terms of Act 116 of 1998 (DVA)
,
the
complainant and the Respondent
have
to be in a domestic relationship
.
Section
1 of the
DVA
provides
for the definition of a
"
domestic
relationship
",
which
refers to
,
inter
alia
,
a
relationship between a complainant and Respondent where they are
family members related by consanguinity
,
affinity
or adoption. The Respondent therefore argued that as they
were
brothers
,
that
they were in a domestic relationship
and
,
therefore
,
that
he qualified as a complainant in terms of the Act.
25.
Disagreeing
with
th
i
s
averment by the Respondent
,
the
Court in
Daffy
found
that the provision is too broadly formulated
,
in
that no degree of relationship
,
consanguineous
or otherwise,
i
s
mentioned and that the concept of
"
family
"
is
extremely wide
.
[14]
To
illustrate this point the court questioned whether distant cous
i
ns,
who have nothing in common other than sharing a mutual ancestor
,
would
qualify as being in a domestic relationship. To the Daffy-court
'
s
mind
,
this
question could not be answered in the affirmative.
[15]
Indeed
,
the
SCA
'
s
dissatisfaction with the broad nature of the definition
of
a
"
domestic
relationship
"
resulted
in
the court stating
that
as
fa
r
as
the interpretation of leg
i
slation
is concerned
the
underlying
purpose
of a p
r
ovision
has to
be
considered
in
order to avoid a purely literal meaning
that
would
result
in
absurdity.
[16]
26.
The
SCA went further in attempting to interpret the legislation by
placing reliance on
the
S
v Baloyi
case
and highlighted that the concept of
domestic
violence
is commonly
understood
as
being
violence
within
the confines
of
the family unit, which is often hidden from view by reason of the
helplessness
of
the victim and the position of power of an abuser
.
Furthermore,
the common meaning of
"domestic"
pertains
to the home, house, or household,
in
other
words,
one's
home or family affairs,
[17]
"family",
according
to the SCA, has as one of its general connotations
"the
body
of persons who live in one house or under one head, including
parents
,
children,
servants etc".
Accordingly,
the SCA avers that if one has regard to the ordinary connotation
of
a
"domestic
relationship"
it
would involve persons who share a common household
.
[18]
27.
While
the court in
Daffy
acknowledged
that
the legislature envisaged that the definition bears a wider
meaning
than
the
above
for purposes of the DVA
,
it
was
not
,
in
the court
'
s
opinion
;
intended
that a mere blood relationship
,
even
if close, would in itself
be
sufficient.
[19]
Accordingly,
the
SCA
found
that
adhering
to
a
definition
"regardless
of
subject-matter and
context
might
work
the
gravest
injustice
by
including
cases
which
were
not
intended
to
be
included'.
[20]
Furthermore,
the
court
continued that other provisions under the definition of a domestic
relationship require some form of association
other
than mere consanguinity
to
be
regarded
as
a domestic relationship
.
Thus,
it was found, that the definition is poorly framed and incapable of
bearing a precise meaning. While stating this, the SCA
nevertheless
found it unnecessary to attempt to determine what would be required
for such a relationship to be regarded as a domestic
relationship
.
[21]
28.
The
SCA
found
that
the Respondents
sole
reliance
on
the fact
that
they were brothers was not sufficient and taking into account their
respective ages and the fact that they had not shared a
common
household for many years, the court held that it would be absurd to
conclude that the mere fact that they were brothers
resulted in them
being in a
"domestic
relationship"
for purposes of the Act.
[22]
Since the Respondent failed to show that he was in a domestic
relationship, he was consequently not entitled to rely on the
protection
afforded in terms of the Act. Although the Respondent
failed in this, the court nevertheless addressed why the Respondent
also
failed to show that there was domestic Violence. Thus, even if
the Respondent
had
managed to convince the court that he was in a domestic relationship
with
the Appellant, he would have failed on this ground.
29.
This
constrictive interpretation of a "domestic relationship"
seemingly
ignores
the intended
aims of the
DVA
including
that
"acts
of
domestic violence may be committed in
a
wide range
of domestic relationships".
This
would also be in line with the SCA
'
s
assertion that
"as
far as
the interpretation of legislation is concerned the underlying purpose
of
a
provision
has to be considered'.
30.
Looking at the
Preamble to the
DVA
it
recognises,
inter
alia:
"that
domestic
violence
is
a
serious
social
evil;
that
there is
a
high
incidence of domestic violence within South African society; that
victims of domestic violence are among the most vulnerable
members of
society
;
that
domestic violence takes on many forms; that acts of domestic violence
may be committed in
a
wide range
of domestic relationships; and that the remedies currently available
to the victims of domestic violence have proved
to be ineffective."
31.
The
DVA
was
clearly
enacted
to
accommodate
the
growing
number
of
domestic
violence incidents and to rectify the shortcomings
of the
Prevention
of Family
Violence
Act 133
of
1993
.
In fact,
one aspect
governed
more
extensively
in
terms of
the
DVA
is
the categories of persons who can apply for a protection orde
r
.
In this regard, the
DVA
provides
an extensive definition of a "domestic relationship
"
.
32.
Furthermore
,
the
Constitution
of the Republic of South Africa
,
1996
(the
Constitution)
provides
various rights that are also applicable to victims of domestic
violence. The
Constitution
guarantees
the right to dignity and to freedom and security of the person.
[23]
Domestic violence against any person is a violation
of
these
rights.
33.
Additionally
,
in
S
v
Baloyi
the
Constitutional
Court
indicated that:
"
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
[1999] ZACC 19
;
(2000 2
SA
425
(CC)
431C)
."
34.
Furthermore
,
in
arguing that a wide definition of a "domestic relationship
"
in
terms of the
DVA
is
intended
,
the
SCA pointed out in
Tsobo
v Tsobo,
[24]
that
there is no denying that the primary objective of the Act is to
provide victims of domestic violence with an effect
i
ve
,
uncomplicated
,
and
swift
l
egal
remedy
.
It
achieves this by providing for a
simp
l
ified
procedure
for
protection
orde
r
applications
,
endowing
t
he
courts
with a wide d
i
scretion
-
both
in
r
espec
t
of
the manner
of
the hearing
and
the form of relief -
and
placing upon the courts and law enforcement functionaries
'
extensive
obligations to assist and protect victims of domestic violence
.
35.
Accordingly
,
and
as already alluded
t
o
above
,
the
DVA
was
ena
c
ted
as a means to combat the inadequate remed
i
es
available to victims of domestic violence in terms of both the common
law and the
Prevention
of Family Violence Act.
[25
]
Another
result that the
DVA
aimed
to
achieve
was
to
broaden
the
amb
i
t
of
persons
to
which
the
act
applied
.
[26]
Unlike
the
Prevention
of Family Violence Act
>,
which
focused on parties who are or were married to each other
,
but
also heterosexual cohabitants, the
DVA
has
a much broader ambit.
[27]
It
is important to note that a constricted interpretation of the concept
of
a
"domestic
relationship
"
and
the failure to
place
it
within
the broader realm of developments
on
domestic violence and research on family violence limits the very
intention of the legislature
.
36.
For
example,
looking
at
the
South
African
Law
Commission
'
s
submission
on
the
extent of the applicability
of
the proposed act it was noted that:
[28]
"
The
further question arises whether the Act should not be amended
to
include
family members that fall beyond the immediate family scope
,
for
example an aunt
,
uncle
,
niece
or nephew
.
There
s
eems
to be the argument that such an amendment
would
negate the spirit of the Act which
is
to
prevent
violence
between parties living together as
a
family
".
[29]
37.
The
recommendation
consequently
provided as follows
:
"
[T]here
should be comprehensive
inclusion
of all those exposed to the risk of domestic violence
..
.
.
It
is
conceded
that
a
broad
definition of the class of persons eligible to seek protection could
be criticised for including
relationships
that
fall
outside the
'
domestic
'
realm
.
However
,
since
the aim is to provide
protection
from
violence
,
a
definition
which
is
crit
i
cised
for being too broad is preferable to
a
definition
that is criticised for being too narrow
.
If
a
person
who arguably falls outside the domestic realm is protected by
invoking the
provisions
of
domestic
violence
legislation
,
it
would
be
a
small
price
to
pay,
if
any
,
for
the
assurance
that
victims
who
ought
to
qualify
for
the
intended protection are entitled to apply for relief'.
[30]
38.
It would
therefore follow that a narrow perspective of "family" or a
"domestic relationship"
that favours
only parties to a marriage seems to be unjustified
.
39.
Accordingly
,
the court in
Daffy
failed to
take cognisance of the objectives and foundational principles of the
DV
A,
one of the
formers being the acknowledgment that domestic violence can occur in
a wide range of domestic relationsh
i
ps
.
40.
In
addition
,
although
the
DVAA
only
came into effect on 14 April 2023, and was not operational
at
the time
the
application
was
made by the
Respondent
for
the protection order in the present matter
,
it
is however important to mention that in line with a broader
interp
r
etation
and approach the
DVAA
defines
a domestic relationship as
follows
:
[31]
A
domestic
relationship
means
a
relationship
between
a
complainant
and
a
respondent in any of the
following ways:
(a)
they
are or were married to each other
,
including
marriage according to any Jaw
,
custom
or religion
;
(b)
they
(
whether
they are of the same or of the opposite sex) live or lived together
in
a
relationship
in the nature of marriage
,
although
they are not
,
or were
not
,
married
to each other
,
or are
not able to be married to each other
;
(c)
they
are the parents of
a
child or
are persons who have or had parental responsibility for that child
(whether or not at the same time)
;
(d)
they
are family members related by consanguinity
,
affinity
or adoption
;
(e)
they
are or
were in an engagement
,
dating
or customary
relationship
,
including
an actual
or
perceived
romant
i
c
,
intimate
or
se
x
ual
relationship
of any
durat
i
on
;
or
(f)
they
share
or
recently
shared
the
same
residence,
premises
or
property
within
the preceding year
.
41.
The
DVAA
has
from its wording and inclusions introduced changes to the original
legislation
,
the
DVA.
Among
these changes, the
DVAA
has
expanded the section originally titled "definitions
"
to
include "definitions and interpretations
".
The
DVAA
is
intended
to
bring forth significant
amendments
to
its predecessor
.
Additional
acts
of domestic
violence
,
including
spiritual
abuse
,
[32]
elder
abuse
,
[33]
and
coercive
and
controlling behaviour
,
exposing
a child to domestic violence
,
and
unauthorised entry into a complainant's
workplace
or place of study have been included in the new Act.
42.
Courts,
like in
S
V Saloyi,
speeches
by the President,
[34]
statistics
[35]
and
r
esearch
[36]
have
constantly highlighted that South Africa is considered a country with
high cases of domestic violence
.
Statistics
reported for 2023 suggest that over 15 000 women were victims of
physical and sexual assault. Additionally, more than
960 women were
killed because of domestic violence related cases
.
The
OVA
is
intended to curb the rates of violence
.
One
of the ways identified to curb domestic vio
l
ence
is
l
aws
and the effective enfo
r
cement
thereof
.
Society
is constantly changing
,
and
the law must adapt accordingly to ensure relevance and that the
widest possible protect
i
ons
are afforded to those in a w
i
de
range of domestic relationship.
43.
The
DVA
together
w
i
th
the
DVAA
has
responded by broadening the types of relationships covered and to
ensure that the law develops accord
i
ng
to societies chang
i
ng
needs
.
Th
i
s
court
should
follow
suit
and
extend
and
give
protections
as
intended
by the
DVA
and the
DVAA.
This
is because, it is clear that in interpreting the definitions and
preamble to the Act
,
that the
DVAA
is
intended to extend the protections
.
The
DVAA
has
accordingly extended the definition of a domestic relationship to
include
"
family
members related by consanguinity
,
aff
i
nity
or adoption
"
and to include
protections for a wide variety of re
l
ationships
.
What is
therefore clear is that our courts cannot operate in a vacuum
.
The law
reflects the values of society and taking into account the scourge of
domestic violence it needs
to
adapt and effectively and responsibly respond to social changes and
crises.
44.
Going back to
the
Daffy
matter
,
and as to why
the
Daffy-courts
constr
i
ctive
interpretation does
not
find
favour
with
the
facts
of
this case
and
in this court
,
the SCA
mentions
"
that
some form of association other than mere consanguinity''
is
required in the remainder
of the
definition but fails to elaborate what
t
his
other form of association entails. This is unfortunate
i
n
two respects. Firstly
,
if one has
regard to some
of the other
categories
under the
relevant
definition
of a domestic
relationship
in terms of the DVA, it is not apparent what the additional
"requirements
"
could be.
Secondly
,
because the
court indicates that it was not necessary to
determine
the exact
meaning of the definition it becomes problematic in that this could
impact the remainder of the categories
,
since it does
not focus
only
on a relationship
by blood
,
but affinity
and adoption as well.
45.
To add to the
SCA's statement that the other aspects of the definition requ
i
re
"some
form of assoc
i
ation
",
reference
is made to the actual provision
.
Specifically
regarding
"(a)
they are or were married to each other
,
including
marriage accord
i
ng
to any law
,
custom
or religion
",
wherein
reference is made to those persons who are or we
r
e
married.
The
question
that
then
arises
is what
about those
who
are no
longer
mar
r
ied
.
The
legislature cannot have intended that by virtue of them no longer
being married or that they no longer sha
r
e
a home that they be excluded from the ambit of protection
i
n
the
DVA.
This would
have unpalpable consequences
i
ncluding
that it could then similarly be argued that having been married does
not suffice for the purpose of protections afforded
under the
DVA,
especially
if they no longer share a household as there is no longer a
relationship
.
46.
Furthermore,
if one has regard to category (e) it refers to
"an
engagement,
dating or customary relationship including an actual or perceived
romantic, intimate or sexual relationship of any duration".
The
term
"any
duration"
implies that there is no set time that the parties needed to date in
order to be protected in terms of the Act. Furthermore,
this part of
the provision does not require that the parties should have shared a
home to rely on the
DVA.
Accordingly,
it would have been prudent for the
Daffy-court
to
elaborate on the qualification
"some
form of
association"
that is
required in respect of the remaining categories.
47.
Furthermore,
the provisions in
category
(b)
states:
".....
they
(whether they are of the same or of the opposite sex) Jive or lived
together in a relationship in the nature of marriage, although
they
are not, or were not, married to each other, or are not able to be
married to each other''
,
specifically
mention live or lived together, which again shows that sharing a
common household is not required. In addition, the
extension of the
types
of
relationships
under
the DVAA now include
spiritual
abuse
,
elder
abuse, related person abuse,
[37]
and
exposing a child to domestic violence which
is
defined
as intentionally causing
a
child
to see or hear domestic violence or experience its effects. It is
clear that the DVAA now covers
various
forms
of abuse, including invisible forms such as technology-based abuse
and controlling behaviour, a clear indication of extending
protections and adapting to the technological changes happening in
society. With
the
scourge
of domestic violence recorded
in
the
country and the ever-evolving technological landscape, the Act offers
children increased protection. By extending the definition
of
domestic abuse, the Act also provides added protection for the
elderly
.
The
DVA
and
the
DVAA
clearly
recognises
that
domestic
violence
can
extend
beyond
the
confines
of
a
home
environment
and
that
many
different domestic relationships require protecting."
48.
It is
recognised that while there may well be strong arguments that there
is a need to limit the provision, for example, by excluding
distant
cousins, the SCA in
Daffy
nevertheless
failed to acknowledge that its' interpretation of the provision
excludes
many applicants. Furthermore
,
if
one
has regard to the court's statement that a "domestic
relationship" entails sharing a common household, that would
mean that all categories or persons who
lived
together
should also be excluded from the protection of the
DVA.
Accordingly
looking at the
intention
behind the
DVA,
a
broader
definition is
certainly required in that the notion of family does go beyond
marriage and that cohabitation should not be a prerequisite.
This is also
recognised by the provisions and extensions of protections under the
DVAA.
49.
In
addition, the distinction between this present matter and
Daffy
over
and above the business interest is that the Appellant is a trustee of
the
"N[...]
J[…]
B[…] Trust",
[38]
and
the Appellant and the Respondent had meetings and continued to meet
about issues related to the family trust and the farms of
the
deceased.
In
addition
thereto, the needs of the mother
of
the Respondent,
and
of the Respondent's sisters
,
is
currently being taken care of by the Appellant and his wife, C[…]
D[…]. The Appellant in his answering affidavit
states that
"when
B[…]
grew older, he transferred more responsibilities to me,
and
B[…]
and my mother
-
in
law
became
more
dependent
for
their
personal
care
on me and my spouse
C[…]
D[…].
It
is
apposite to
point
out that my mother-in-law
is
currently unable to care for herself
She
stays in our household
where
C[…] and I
are
looking
after
her. We manage her
affairs
by virtue of
a
power
of attorney
since
she is totally
incapable
of
managing
her
own affairs. She is
to
a
large
extent non compos
mentis
.......
"
.
[39]
Now
whilst
it
is
deposed to that the financial needs of the mother are adequately
provided for from the pension monies of NJ B[…], the
living
arrangements and the care of the mother of the Respondent
and
of her sisters
,
lies
within the care of the Appellant and his wife, C[…] D[…].
It appears then that while the Appellant and Respondent
had
commercial interests and disputes, there is a relationship beyond
mere business matters to
include
familial concerns, particularly
regarding
the
Appellants mother-in law and mother to the Respondent.
50.
In
addition, all actions complained about occurred on the farm in
Seringhoek where during the period the Appellant and Respondent
shared the farmhouse at Seringhoek situated upon the property of the
late NJ B[…]. It also appears that the Appellant and
the
Respondent have shared the common residence at Seringhoek for periods
in the past while the Respondent’s father was still
alive.
[40]
51.
When one has
regard to the definitions
and
interpretation of the Acts, it is clear that the
DVA
is
intended to be
more inclusive rather than restrictive
in
nature.
52.
Having further
regard
to
the purpose of the
DVA
in
that:
"it
is to
afford victims of domestic violence the maximum protection from
domestic abuse that the law can provide the argument that
the
respondent has
a
different
residential address
would
not, in
these circumstances help the Appellant. From the purpose and ambit of
the DVA and the DVAA
,
distance
and residence are not intended to act as barriers in domestic
violence allegations between relatives. This interpretation
would be
more in line with what is intended
by the
legislation,
and
which is to include the mistreatment of one family member by another
to gain power and control."
53.
Accordingly,
the
DVA
and
DVAA
does
indeed
seek to
protect
the
interests
of
persons who are involved
in a wide
range of domestic relationships. The definition of a domestic
relationship must consequently be accorded an extended and
purposive
meaning.
54.
Accordingly
,
in casu
,
it is
clear that the Appellant is married to the sister of the Respondent
which creates the basis for a conclusion that there exists
a domestic
relationship by affinity.
In
re: Application to Strike Out
55.
The Appellant
avers that the Magistrate erred in not considering an application for
striking off irrelevant/ scandalous/ vexatious
material from the
record.
56.
In looking at
whether o
r
not
the Magistrate erred in not considering t
h
e
application to strike out the Appellant avers that:
"
.....
[s]uch
application was premised on the basis that many paragraphs
,
which
the Court subsequently
relied
on in the granting of the order in favour of the Respondent
,
constituted
objectional matters on the basis of being scandalous
,
vexatious
and/or irrelevant. Further support
i
ng
and confirmatory affidavit which the Court attributed
w
eight
to
w
ere
sought to be struck out
"
[41]
specifically
that
the affidavits of
GA
Boshoff,
PA Rossouw and P Van
Heerden
,
as
well as the paragraphs of the Replying affidavit referred to
;
[42]
and
further that
"
ultimately
and most prejudicial
to
the appellant
was
the court
a
quo
allowing the respondent to raise new matters for the first time in
the replying affidavit which should have been contained in
the
founding affidavit
"
[43]
57.
Having studied
the record it is clear that the judgment of the Mag
i
strate
dated 06-06
-
2023 makes no
mention of an app
l
ication
for striking out or no order relating to that application was even
made by the Magistrate.
58.
This struck me
as odd as an application for striking out in terms of the legal
requirement
is
to be set down for hearing at the same time as the hearing of the
main application on the merits.
59.
What
I have before
me on the record is a notice
of motion
dated 13-02-2023
relating to
the application to be made on 14 February 2023. There is however no
record of a notice of set down o
r
any indication
as to the status of that application
.
On the papers
before
me
it
would
seem that the Appellant
simply
did not move
for the relief as set out in the application to strike out at the
return date of the interim protection order
.
60.
As
was rightly
highlighted
by the Respondent
"
in
the circumstances
it
is submitted that it ill-behooves Appellant to attempt to sneak in
the application to strike out
as
part
of his appear
.
[44]
61.
Looking at the
provis
i
ons
of Rule 55(9)
,
i
t is clear
from the word
"
may
"
,
that the court
has a discretion in an applicat
i
on
to strike out a matter from an Affidavit. The Magistrate could not
have been in a position to exercise a disc
r
etion
where no application for striking out was before it.
62.
It
certainly does not help the Appellants case on this issue to now say
that the court a
quo
erred
in not considering the application for striking of
irrelevant/scandalous/vexatious material
from
the
record
when
no
such
app
l
ication
was before it. The Magistrate could not accord
i
ngly
exercise her discretion
,
that
she may have
had
in terms
of
Magist
r
ate
'
s
Court
Rule
55
(
9)
[45]
Appellan
t
simply
did
no
t
proceed
with the app
l
ication
.
63.
Absence
detailed reasons for such an omission this
c
ourt
i
s
not in a pos
i
tion
to adjudicate upon this as a ground of appeal.
In
re: Acts of Domestic Violence
64.
Looking
at the Form 2 completed by the Respondent for the application for a
protection order, the Respondent
lists
the
various acts that were alleged
to
be
incidences of domestic violence.
[46]
i.
Intimidation
ii.
Controlling
and abusive behaviour
iii.
Locking
of Farm Gates
iv.
Continuous
Threats
v.
Economic
abuse as he is squandering the finances of the farm
vi.
Psychological
abuse
vii.
Harassment
65.
In
the Form J480E,
the
Respondent
further
mentioned the following:
[47]
i.
Respondent
is always armed and has
±
weapons
ii.
He is
aggressive and intimidating
iii.
I
am
a
women and
defenceless
iv.
He
locks the farm gates sabotages vehicles and throws away house keys
v.
Makes
threats that the farm is unsafe trying to scare us away
66.
The
Appellant herein contends that
"in
coming
to
a
conclusion
as to whether acts of domestic violence were committed the court a
quo does not deal with the evidence other that stating
that both
parties have filed affidavits".
[48]
67.
In
addition, regarding
the
evidence
of
these acts, the Appellant further argues that the Respondent
"
makes
very limited and vague allegations only regarding acts of domestic
violence, mainly in paragraphs
5
and
6 of the founding affldavif'.
[49]
68.
The
Respondent argues that looking at the acts of violence committed
the following
are apposite:
a.
Trespassing
on
the
farm.
[50]
b.
It
was alleged that on 20 January 2023 the Appellant unlawfully and
without notice
given
or permission
granted
gained
access to the farm and changed the lock of the farm gate
.
[51]
c.
The
Appellant
was
intimidating
to
an extent that the Respondent
feared
for her safety and the Appellant was extremely aggressive against two
defenceless women.
[52]
d.
Appellant
engaged
in
behaviour
designed
to
cause
fear
[53]
and
aimed
at
psychological and intimidation tactics.
[54]
e.
The
Appellant caused that the Respondent and her sister to request from
the Appellant
"several
times
to provide us with a key to the new lock of the farm gate to enable
us to enter and exit the
farm
"
,
[55]
which
conduct
"constitutes
entry
to our family farm without consent or legal right and abusive and
psychological
abuse
by changing
the
lock to the farm gate and making
me
and my sister beg for a key to the lock and attempting to scare us
off the farm by repeatedly
telling
us that it is dangerous
and
unsafe for us on the farm"
.
[56]
f.
The
Appellants demeanour when addressing the Respondent and her sister
caused them to fear for their safety and for the safety of
their
child
r
en
.
[57]
g.
On
22
January
2023
the
Appellant
lingered
in
the
farmhouse
for
approximately an hour,
[58]
sabotaged
the bakkie on the farm
,
[59]
took
the Trelly safety
door
keys as well as the farmhouse
keys
for the backdoor
so
that
the
Respondent
and her sister were unable to lock the door in the evening,
[60]
and
switched off the plug controlling the air conditioner, causing it to
not work.
[61]
h.
Appellant
has further been accused of refusing to handover the deceased's
property to the Executors, and
''plundering
the
deceased estate from money that should come to the estate causing
economic
harm..
".
[62]
i.
In
addition, the Appellant intimidated and caused confusion among the
farmworkers by telling them that they were working for him;
[63]
committed
fraud,
[64]
capturing
of
the deceased
estates
for his own
use
and selling
off
more than half of the deceased's cattle
,
[65]
and
his behaviour indicates that the
"Appellant
would
do anything to retain control over the deceased's estate".
[66]
69.
The
violent behaviour
of
the Appellant was attested to by a confirmatory
affidavit
of the sister, M[…] O[…].
[67]
70.
In
addition, a supporting affidavit deposed to by one George Albert
Boshoff
[68]
regarding
the acts of domestic violence complained
of
by the Respondent
was
used as confirmation thereof.
71.
In addition, a
supporting affidavit of Petrus van Heerden, a brother-in-law of the
Respondent, was used as corroboration for the
averments and
allegations made by the Respondent
in the
founding papers.
72.
The Appellant
further submits that:
"viewed
on its own, these allegations
do
not support a case, objectively,
that
it harms, neither that if reasonably inspires
a
reasonable
belief that harm may be caused to the Respondent as contemplated in
the
Domestic
Violence Act"
;.
[69]
They
go further by stating that
"when
considered
against
the
definitions
of
"intimidation",
"controlling
behaviour"
and
"emotional,
verbal
and psychological abuse" as contemplated in the Act, the
allegations made clearly does not make out
a
case
at
all",
[70]
and
that the
"true
nature
of the dispute between
the
parties
is
not about
any
act
of domestic
violence,
but rather about the issue of the late estate of N[…] J[…]
B[…], the trust and the properties in
relation thereto.
”
[71]
73.
According to
the
DVA,
domestic
violence is identified as:
"domestic
violence"
means
-
(a)
physical
abuse;
(b)
sexual
abuse;
(c)
emotional,
verbal
and
psychological abuse;
(d)
economic
abuse;
(e)
intimidation;
(f)
harassment
(g)
stalking;
[72]
(h)
damage
to property:
(i)
entry
into
the
complainant's residence without consent,
where
the
parties do not share the same residence; or
(j)
any
other controlling
or
abusive
behaviour
towards
a
complainant,
where
such
conduct harms, or may cause imminent harm to, the safety health or
wellbeing
of
the
complainant
;
"economic
abuse"
includes
-
(a)
the
unreasonable deprivation
of
economic
or
financial
resources
to
which
a
complainant
is
entitled
under
law or which the complainant
requires
out
of
necessity, including household necessities for the complainant
,
and
mortgage bond repayments or payment of rent in respect of the shared
residence; or
(b)
the
unreasonable disposal of household effects or other property in which
the complainant has an interest;
"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
;
"harassment"
means engaging in a pattern of conduct that induces the fear of harm
to
a
complainant
including
-
(a)
repeatedly
watching. or loitering outside of or near the building or place where
the complainant resides
,
works,
carries on business
,
studies
or happens to be;
(b)
repeatedly
making
telephone
calls
or
inducing
another
person
to
make
telephone calls to the complainant, whether or not conversation
ensues;
(c)
repeatedly
sending
,
delivering
or causing the delivery of letters
,
telegrams,
packages
,
facsimiles,
electronic mail or other objects to
the
complainant;
"intimidation"
means
uttering or conveying
a
threat, or
causing
a
complainant
to receive
a
threat
,
which
induces fear
"
.
74.
Whilst
once
again acknowledging
that
even though the
DVAA
only
came
into
effect
after the
application
for
a
protection
order
was
instituted
by
the
Respondent,
it
is
important
to mention that further
acts
of domestic
violence
were
added
to
the list in the
DVA
and
includes coercive and controlling behaviour.
[73]
75.
Acts of
domestic violence are consequently varied, wide and with varying
effects and in terms of the scope and ambit of the Act,
deliberately
intended to be so. A too constricted approach or interpretation would
render the aims of the
DVA
ineffective.
76.
However,
what actually translates to acts of domestic violence will be
dependent on the facts of each case.
[74]
77.
In this case
looking at the various acts complained of and its resultant effects,
the Magistrate
found the
following
acts
by the Appellant
to be acts of
"domestic
violence":
Intimidation
Controlling Behaviour
Psychological
abuse
Locking
farm gates
Entry
to family farm without consent
Continuous
threats
Economic
abuse
78.
Looking at the
definitions of what constitutes domestic violence in terms of the
DVA,
I
am in agreement. The acts complained of falls squarely within the
definitions and scope
of
the
DVA
and
DVAA.
When
looking
at
the
behaviour
of
the
Appellant,
it
should
not be considered in isolation but instead the court should consider
the full context
of the alleged
violent
acts
to properly
understand
the full and
resultant
effect of said
acts and behaviour. Indeed, a number of acts when viewed in isolation
may appear
to
be trivial or minor, but when viewed in its entirety can form part of
a pattern of behaviour that is abusive and or violent.
79.
The
Appellant's actions, when considered in full context and as alleged
by the Respondent, fall within the definitions as articulated
above,
particularly concerning verbal, emotional, or psychological abuse,
harassment, and stalking.
In
re: Incorrect Application of the Plascon-Evans Principle
80.
The
Appellant avers that the Magistrate incorrectly found that the above
acts of violence were committed by him and that the Magistrate
incorrectly applied the principle set out in
Plascon-Evans
Paints Lt v Van Riebeeck Paints (Pty) Ltd
[75]
(Plascon-Evans)
regarding
final interdicts and/or orders.
81.
Looking
at
the
replying
affidavit
of
the
Appellant,
there
is
a
denial
of
the
acts
constituting domestic violence and it is averred that when one looks
at:
"the
true
nature of the dispute between the parties [it] is not about any act
of domestic violence, but rather about the issue of the
late estate
of N[…] J[…]
B[…],
the
trust and the properties
in
relation thereto. The issue of the written agreement entered into
between the Appellant, B[…] and Nadan
CC
is
of particular importance in the dispute between the parties".
[76]
82.
A denial by
the Appellant of a factual allegation in the Respondent's founding
affidavit must
be
real,
genuine
and
bona
fide
before
it
can
be
considered
prohibitive
to
the
Respondent
being granted
final relief. This issue was touched upon in the decision of
Islam
v Kabir.
[77]
"When
in
application proceedings there is
a
dispute of
fact which has to be resolved on the papers and on the basis of the
principle enunciated in the Plascon-Evans Paints
matter, the court
can only reject the version of the respondent if the absence of bona
tides is abundantly clear and manifest and
substantially
beyond
question. See: Reynolds
v
Mecklenberg
1996 (1)
SA
75
(W). The
court must therefore be convinced that the allegations of the
respondent
are so
far-fetched
or
clearly untenable
that it
is justified
in
rejecting them merely on the papers. See in this regard Plascon-Evans
Paints
(supra)."
83.
Thus
,
a court must
be convinced that the allegations of the Respondent are so far
fetched or so clearly untenable that it is justified
in rejecting
them merely on the papers and without requiring oral evidence to be
led.
84.
Looking at the
Plascon-Evans
rule
i
t
stipulates that:
"where
there
is
a
dispute
of fact in motion proceedings, the respondent
'
s
version is generally accepted
.
The
court therein found that the detailed allegations made by the
respondent, which were unchallenged
in
substance by the appellant, warranted the granting of
a
protection
order. The primary purpose
of
issuing
an
interdict
in
cases
of
family
or
domestic
violence,
as
highlighted
by the Constitutional Court, is not to address domestic issues or to
inflict penalties. Instead
,
its
aim is to offer
a
period
of respite, facilitating the discovery of solutions. This approach is
focused not on penalising previous wrongdoings but
on averting future
transgressions. Ideally
,
it
strives for preventive
justice
rather
than
punitive
measures,
with
the
ultimate
goal
of
fostering restorative justice".
[78]
85.
In the matter before
this court, in his answering affidavit, the Appellant's response to
the Respondent's allegations amounted to
what can only be described
as a mere denial of such acts. When allegations made in the founding
papers
are
not substantially contradicted by the opponent, it stands to reason
that the allegations made can be accepted
as correct.
Accordingly,
if there are
real factual
disputes
on
the papers before a Court, the Court will adjudicate the matter on
the version put before it by the Respondent.
Where either
the allegations
or denials are
so far fetched
or clearly
untenable, a
court is
justified
in
rejecting them merely
on the papers
.
86.
It
becomes important to mention as was highlighted in
Wightman
t/a JW Construction Ltd
[79]
that:
"
.......
a
judge
should not allow
a
respondent
to
raise
'fictitious'
disputes
of fact
to delay the hearing of the matter or to deny the applicant
its
order.
There had to be
a
bona fide
dispute of fact on
a
material
matter. This means that an uncreditworthy denial
,
or
a
palpably
implausible
version,
can be
rejected out of hand
,
without
recourse
to oral evidence
"
87.
In casu
therefore
the Appellants
mere denials relating to complaints about domestic acts committed by
him, were palpably implausible and far-fetched,
and could be rejected
by the Magistrate. Indeed, the Magistrate correctly found
that
acts of
domestic violence was committed and stated that:
"
.
..
..
these
acts
of
domestic violence vary from intimidation, controlling behaviour,
psychological abuse, locking farm gates entry to
a
family
farm without consent, continuous threats and economic abuse".
[80]
88.
The acts in
its totality together with the bold denials by the Appellant failed
to raise a real
,
genuine or
bona fide
dispute of
fact which could have created a hurdle fo
r
the Magistra
t
e
to make a final finding in the Respondent's favour
.
89.
Indeed
,
there was
no
t
hing
stopping the Appellant from filing confirmatory aff
i
davits
to corroborate their version.
90.
The Respondent
on the othe
r
hand filed a
supporting affidavit of George Albert Boshoff wherein references
were made to
the acts of domestic violence complained of by the Respondent and
wherein specific dates relevant to the occurrences
were deposed to
.
91.
In addition,
the supporting affidavit of Petrus van Heerden was filed to
corroborate the averments and allegations made by the Respondent
in
the founding papers
.
92.
Having
regard to these two supporting affidav
i
ts
it
i
s
clear that it elaborates on and confirms allegations and averments
already
made in the founding pape
r
s.
[81]
93.
The
Magistrate on all the ev
i
dence
found that
"
on
a
balance
of probabilities
...
a
domestic
relationship e
x
isted
between the complainant and the respondent and that the respondent
had
committed
an
act of domest
i
c
violence towards
the
complainant”
.
[82]
94.
The Magis
t
rate
correctly applied the
Plascon-Evans
principle
and found that the general denial o
f
all
allegations of domestic violence acts by the Appellant was
implausible
,
to the extent
that
i
t
was found that the denials could be rejected outright on the papers
alone
.
95.
After
considering
all aspects
of the case,
this court
finds
that the
Magistrate
'
s
decision to issue a final protection order was justified. The
Magistrate had correctly interpreted the scope of the
DVA
and its
application to the facts of the case.
96.
The Magistrate
recognised that domestic violence, as defined in the
DVA,
encompasses
a wide range of behaviors, including those exhibited by the
Appellant. The court acknowledged that such behaviors extend
beyond
physical violence to include emotional
,
verbal, and
psychological
abuse, which
were relevant
in
this case.
97.
Furthermore,
in its judgment, the Magistrate applied the
Plascon-Evans
rule,
which favored the Respondent's version of events due to the
Appellant's failure to substantively refute the allegations. The
Magistrate correctly found that the
Appellant's
bare denials were insufficient to counter the detailed and specific
allegations made by the Respondent.
98.
In
J.G
v A.N
,
[83]
thereto,
the court found that the Appellant's approach of relying on a bare
denial of the allegations without substantively addressing
them was
deemed insufficient by the court. The court further reiterated the
purpose of a protection order under the
DVA,
emphasising
its
role as a preventative measure rather than a punitive one. The court
highlighted that the primary
objective
of such orders
is
to prevent future misconduct and provide a safe space for potential
resolution of domestic
issues.
99.
In conclusion,
the court's judgment
in
J.G
v A.N
reinforced
the broad scope of the
DVA
and its
applicability to various forms of domestic relationships. The case
highlighted the importance of detailed factual analysis
in cases of
domestic violence and the role of protection orders in safeguarding
individuals from potential harm.
100.
Having
regard to all
of the above, the only inference from the contextual facts is that a
domestic relationship exists between the Appellant
and the Respondent
and that such a relationship
is deserving
of being protected by the principles in the
DVA.
101.
The Respondent
consequently
proved a clear
right and a reasonable
apprehension
of harm and imminent harm to her rights
,
without any
other satisfactory remedy available
to her.
The Respondent
dsid prove
on a
balance
of
probabilities
that she was
ent
i
tled
to the domestic order granted by the Magistrate
.
102.
There
is no basis on which to find that the costs of the appeal should not
follow the results
.
[84]
ORDER
1.
The
Appeal is
dismissed with costs
.
T.DEANE
ACTING
JUDGE OF THE HIGH
COURT,
POLOKWANE; LIMPOPO
DIVISION
I
agree
,
and
it is so
ordered
.
M.
NAUDE-ODENDAAL
JUDGE
OF THE HIGH COURT
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF
:
Adv SM
Stadler
INSTRUCTED
BY
:
Bernhard
Van Der Hoven Attorneys
FOR
THE DEFENDANT
:
Adv JG
Bergenthuin
INSTRUCTED
BY
:
Cilliers &
Reynders Inc
.
[1]
Record:
Vol 3, pp 176-184.
[2]
Record:
Vol 3, p 185.
[3]
Record:
Vol 3, p 186.
[4]
Record:
Vol 3, p 186.
[5]
[1984] ZASCA 51
;
1984
(3) SA 623
AD.
[6]
Record:
Vol 1, pp 4, 13, 16.
[7]
Record:
Vol 3, p 186.
[8]
2012
(4) All SA 607 (SCA).
[9]
2000
(2) SA 425 (CC).
[10]
Appellants
Heads of Arguments: p 12, para 28.
[11]
Appellants
Heads of Arguments: p 12, para 29.
[12]
Respondents
Heads of Arguments: p 3.
[13]
Daffy
v Daffy
at
para 4.
[14]
Daffy
v Daffy
at
para 7.
[15]
Daffy
v Daffy
at
para 7.
[16]
Daffy
v Daffy
at
para 8.
[17]
Daffy
v Daffy
at
para 8 and with reference to the
Shorter
Oxford English Dictionary on Historical Principles
(6th
ed).
[18]
Daffy
v Daffy
at
para 8 and with reference to the
Shorter
Oxford English Dictionary on Historical Principles
(6th
ed).
[19]
Daffy
v Daffy
at
para 8.
[20]
Daffy
v Daffy
at
para 8.
[21]
Daffy
v Daffy
at
para 9.
[22]
Daffy
v Daffy
at
para 9.
[23]
See
ss 10 and 12 of the
Constitution
respectively.
[24]
2022
(2) SACR 233 (SCA).
[25]
No.
133 of 1993.
[26]
Vetten
L (2005) "Violence agai11st women: Good practices in combating
and eliminating violence against women". Conference
of the UN
Division for the Advancement of Women & UN Office on Drugs and
Crime - 17 to 20 May 2005 Vienna, Austria, at 3.
[27]
The
DVA
is
applicable to a range of familial (Married, divorced or separated
couples; couples living together; parents of a child; family
members
(including the extended family); people who are or were engaged or
dating one another - including those circumstances
where one party
(but not the other) perceives some form of romantic, intimate or
sexual relationship to be in existence; and
children) and domestic
(such as people who share or have recently shared the same
residence) relationships and covers both heterosexual
and same sex
relationships. See Vetten (2005) at 4.
[28]
SA
Law Reform Commission (1996) "Family Violence". Issue
Paper 2, Project 100, at 5.
[29]
See
SA Law Reform Commission (2007) "Domestic Violence".
Discussion Paper 70, Project l00 at 25.
[30]
SA
Law Reform Commission (2007), at 37.
[31]
DVAA
section
2(h).
[32]
Spiritual
abuse is defined as inciting harm against the complainant based on
their religious or spiritual beliefs, amounting to
advocating
hatred, preventing the complainant from exercising their
constitutional right to freedom of conscience, religion,
thought,
belief, and opinion, including the external manifestation of their
religious or spiritual convictions and manipulating
the
complainant's religious or spiritual convictions to justify or
rationalise the abuse.
[33]
Elder
abuse is defined in alignment with the
Older
Persons Act,
making
the abuse of older individuals a punishable offense. Notably, this
extension of protection to the elderly is a crucial
aspect of the
Act.
[34]
South
African Government (2022) "President Cyril Ramaphosa: Second
Presidential Summit on Gender-Based Violence and Femicide".
At
https://www.gov.za/news/speeches/president-cyril-ramaphosa-second-presidential-summit
gender-based-violence-and
(3 April 2024).
[35]
Statista
(2023) "Number of domestic violence-related crimes in South
Africa in 2022/2023". At
https://www.statista.com/statistics/1401015/number-of-selected-domestic-violence-related-crime-in-south-africa-bygender/
(4 April 2024).
[36]
Brodie,
N (2023) "Domestic Terror: Intimate partner violence in South
Africa". Kwela: Cape Town.
[37]
Means
causing a complainant harm by:
a.
committing physical violence against or
damaging the property of a related person;
b.
threatening a related person with physical
violence against or damage to the property of either the complainant
or the related
person concerned; or
c.
threatening a complainant with physical
violence against or damage to the property of a related person
[38]
Founding
Affidavit: p I0, para 4.7.
[39]
Record:
p 51, para 5.9.6.
[40]
Record:
p 82, par 8.19; p 64, para 8.25; p 66, para 8.32.
[41]
Appellants
Heads of Argument: p 22, para 66.
[42]
Record:
p 186, para 2.
[43]
Appellants
Heads of Argument: p 22, para 67.
[44]
Respondents
Heads of Argument: p 17, para 7.1.
[45]
(9)(a)
The court may on application order to be struck out from any
affidavit any matter which is scandalous, vexatious or irrelevant,
with an appropriate order as to costs, including costs as between
attorney and client.
(b)
The court shall not grant an application referred to in paragraph
(a) unless it is satisfied that the applicant will be prejudiced
in
his or her case if it be not granted.
[46]
Record:
p 3, para 4.2; p 4, para 5.
[47]
Founding
Affidavit: para 6 relating to urgency.
[48]
Appellants
Heads of Argument: p 15, para 43.
[49]
Appellants
Heads of Arguments: p 16, para 47.
[50]
Record:
p 19, para 7.7.
[51]
Record:
p 13, paras 24-27.
[52]
Record,
pp 13-14.
[53]
Record:
pp 14-16.
[54]
Record:
p 14, para 5.4.
[55]
Record:
p 14, para 5.6.
[56]
Record:
pp 14-15, para 5.7.
[57]
Record:
p 16, para 5.13.
[58]
Record:
p 15, para 5.9.
[59]
Record:
p 16, para 6.1.1.
[60]
Record:
p 17, para 6.1.2.
[61]
Record:
p 17 para 6.1.4.
[62]
Record:
p 18 para 7.4.
[63]
Record:
p. 18, para 7.5.
[64]
Record:
19 para 7.10.
[65]
Record:
p 19, para 7.10.
[66]
Record:
p 20, para 7.11; Respondents Heads of Argument: p 29, para 9.4.17.
[67]
Record:
Annexure H, pp 42-45.
[68]
Record:
pp 117-125.
[69]
Appellants
Heads of Argument: p 18, para 49.
[70]
Appellants
Heads of Argument: p 18, para 50.
[71]
Appellants
Heads of Argument: p 19, para 55.
[72]
The
word "stalking" was deleted by the DVAA. Although the word
does not appear in the DVA anymore, the act of stalking
now
technically forms part of the revised definition of "harassment").
[73]
Looking
at Section 2(c) and (d) - Coercive and Controlling Behaviour; the
New Act seemingly broadens the idea of domestic abuse
in a
relationship by the introduction of two new definitions: "coercive
behavior" and "controlling behavior."
"Coercive
behaviour" is described as abusive conduct or acts of force,
intimidation or undue pressure intended to cause
a complainant or a
related person to act, not to act, or be subjected to certain acts
against his or her will.
"Controlling
behaviour" is described as causing the complainant or a related
person to be dependent on or subordinate
to the respondent by:
a.
isolating him or her from sources of
support;
b.
exploiting his or her resources for
personal gain;
c.
depriving him or her of the means needed
for independence, resistance, or escape; or
d.
regulating his or her everyday behaviour.
[74]
J.
G
v
A.N
(A3132/2021)
[2024] ZAGPJHC 45 (26 January 2024).
[75]
[1984] ZASCA 51
;
1984
(3) SA 623
AD.
[76]
Appellants
Heads of Argument: p 19, para 55.
[77]
(CA:
280/2010) [2011] ZAECGHC 9 (11 April 2011), para 17.
[78]
S
v
Baloyi
(Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000
(2) SA 425
(CC) para 17.
[79]
[2008] ZASCA 6
;
2008
(3) SA 371
SCA par 13.
[80]
Record:
p 182.
[81]
Record:
pp 167, 168, 170, 171.
[82]
Record:
p 183, para 26.
[83]
(A3132/2021)
[2024] ZAGPJHC 45 (26 January 2024).
[84]
Neuhoff
v York Timbers ltd
1981
(l) SA 666 (T).