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[2024] ZAECMHC 61
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S.M v Minister of Justice and Correctional Services and Others (3424/2023) [2024] ZAECMHC 61; 2025 (1) SACR 65 (ECM) (9 July 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.: 3424/2023
In
the matter between:
S[…]
M[…]
Applicant
And
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVICES
1
st
Respondent
MS
MVIKO, THE DISTRICT COURT MAGISTRATE
MTHATHA
2
nd
Respondent
Z[…]
D[…] M[…]
3
rd
Respondent
REVIEW
JUDGMENT
RUSI
J
[1] On 23 August 2023 the
applicant brought this application in two parts – in its Part
A, he sought an interim order pending
the determination of Part B in
which he sought as order reviewing and setting aside a final
protection order granted by the second
respondent acting in her
official capacity.
[2] In terms of the final
protection order issued by the second respondent, the applicant was
ordered not to enter the marital home
where he lived with the third
respondent who is his wife and their minor child among other persons.
Further in terms of the protection
order he was ordered not to commit
certain acts of domestic violence including assaulting or threatening
the third respondent,
inter alia
.
[3]
On 29 August 2023 the applicant was granted the interim order
[1]
sought in Part A of the application in terms of which the third
respondent was ordered to allow him into their marital home. He
was
also granted other ancillary relief.
[4] The review of the
final protection order as envisaged in Part B of the application
served before us unopposed on 27 February
2024. The first and second
respondents filed a notice to abide this Court’s decision on
condition that no cost order was
sought by the applicant against
them. Mr
Zilwa
appeared on their behalf in order to argue the
issue of costs.
The factual background
[5]
These are the facts giving rise to the review application. The
applicant and the third respondent are married to each other
in
community of property and their marriage still subsisted at the time
of the issuing of the protection order. They lived together
with
their minor child and two other persons at
house number 2[…]
i[…] Ridge Ncambedlana.
[6]
On 22 March 2023 the applicant was arrested on allegations that he
had assaulted the third respondent. Following his arrest,
he appeared
in the Mthatha Magistrate’s Court on 23 March 2023 and was
legally represented. While waiting for his case to
be called on this
day, it was brought to his attention that the third respondent was
preparing a statement withdrawing the assault
charge against him.
Even though the third respondent’s statement of withdrawal of
charges was brought to the attention of
the court, the case was
nonetheless postponed to 31 March 2023, and he was remanded in
custody.
[7]
On this latter date the applicant intended to apply for his release
on bail and anticipated that charges against him would be
withdrawn.
He goes on to state that shortly before the court started on 31 March
2023, he was instead served with an application
for a protection
order and an interim protection order granted apparently on 24 March
2023 under case number DV 513/2023.
[8]
He had no knowledge of the protection order prior to his appearance
in court as he had come from a detention facility. The prosecutor’s
application that the charge of assault against him be withdrawn was
not acceded to by the second respondent who instead instantaneously
dealt with his domestic violence case and admitted him to bail of
R1000.00 on certain conditions. The second respondent summarily
issued a final protection order.
[9]
It is the applicant’s contention that when this happened, he
had not had an opportunity to read the contents of the application
and the interim protection order that were served upon him and to
prepare his defence. He further asserts that in conducting the
hearing of the domestic violence case, the second respondent merely
asked questions regarding his marriage to the third respondent
after
which she issued a final protection order against him. He was
thereafter furnished with a copy of the final protection order,
and
his case of assault was simultaneously postponed to 05 May 2023.
[10]
The third respondent’s application for a protection order (Form
2); the interim protection order (Form 4); the final
protection order
(Form 6) and a warrant of arrest (Form 8) are annexed to the
applicant’s founding papers. For the sake of
completeness, it
is worth mentioning that these are forms prescribed by the
Regulations to the Domestic Violence Act, 116 of 1998
(the
Domestic
Violence Act).
The
grounds of review
[11]
The applicant states that the second respondent committed an
irregularity in arbitrarily granting the final protection order
and
was actuated by bias and malice against him. He bases this assertion
on the following: on the face of it, the interim protection
order had
as its return date 10 July 2023 at 8h30. On this day he would show
cause why a final protection order could not be issued.
In terms of
the same interim protection order he was also granted a right to
anticipate the return date of 10 July 2023 on 24 hours
written notice
to the applicant and the court.
[12]
It is the applicant’s contention that he was not afforded an
opportunity to show cause why a final order could not be
made, and
the interim protection order was granted without notice being given
to him which conduct offended his right to be heard.
He further
contends that the second respondent failed to follow the correct
procedure as envisaged in
section 6
of the
Domestic Violence Act in
that she did not hold an inquiry during which she would hear evidence
before granting the final order and therefore violated his
right to
adduce and challenge evidence. Furthermore, he says, he was denied
legal representation as envisaged in
section 14
of the
Domestic
Violence Act as
he knew nothing about the domestic violence case and
had been coming from his place of detention.
[13]
In support of his assertion of bias and malice on the part of the
second respondent, the applicant contends that she was wrong
in
dealing with both his bail application in relation to the criminal
charge and the domestic violence case. According to the applicant,
the second respondent ought to have caused the domestic violence case
to be heard in the Domestic Violence court and not ‘usurp
the
powers of this latter court’.
[14]
As a further basis for the contention of bias, the applicant
highlights the second respondent’s refusal to withdraw the
charge of assault and her instantaneous or summary determination of
his domestic violence case. He further states that on the date
of the
hearing no explanation was given to him of his rights in those
proceedings, the second respondent only interacted with the
third
respondent regarding their marriage and never with him. She only
informed him that a final protection order was granted.
[15]
Further according to the applicant, the second respondent improperly
infused in the order granting him bail the terms of the
final
protection order. She also inappropriately amended the interim
protection order
[2]
without
specifying the extent or terms of such amendment. This in turn causes
him embarrassment and confusion as he does not know
what terms of the
final protection order ought to bind him.
[16]
Concerning the facts and the basis on which the interim protection
order, and ultimately the final order, was made, the applicant
further contends that the said facts were untenable and should not
have resulted in the granting of the interim protection order
to
begin with. He points out that in her sworn statement the third
respondent does not state where, how and when the incidents
of
domestic violence took place. This, according to him, was exacerbated
by the fact that when the final protection order was issued
no
evidence was adduced before the second responded.
[17]
The applicant therefore states that the information contained in the
interim protection order could not have been sufficient
to sustain
the interim and final protection orders particularly when regard is
also had to the fact that the protection order affected
his rights to
housing, property, privacy and dignity as he was evicted from the
marital home which he shared with the second respondent
and their
minor child among other persons. He also laments the second
respondent’s failure to hold an inquiry for the purposes
of
determining whether he would have alternative accommodation in the
event of him being evicted from his marital home.
The
parties’ submissions
[18]
Mr
Zono
who appeared for the applicant
in casu
persisted with the contention that the conduct of the second
respondent evinced malice and bias on her part. This relates to her
failure to hold an inquiry before granting the final protection order
and her ostensible conflation of proceedings of the criminal
case of
assault and the domestic violence matter.
[19]
On behalf of the first and second respondents, Mr
Zilwa
argued
that this Court must have regard to the provisions of section
60(12)
(b)
of the Criminal Procedure Act, 51 of 1977 (the CPA)
which make provision for the granting of a final order upon the
determination
of an accused’s release on bail. This would be of
relevance, so the submission went, regarding the malice and bias on
the
part of the second respondent which the applicant contends for
and on which reliance is placed for the costs that the applicant
seeks against her.
The
law
[20]
Section 22
of the
Superior Courts Act, 10 of 2013
makes provision for
grounds on which proceedings of any Magistrate’s court may be
brought under review before a court of
a Division. Those grounds
include interest in the cause, bias, malice on the part of the
presiding judicial officer; gross irregularity
in the proceedings;
and the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
[21]
Uniform
Rule 53
of the Rules of Court in turn provides for the
procedure to be followed in bringing under review a decision or
proceedings of any
inferior court and of any tribunal, board or other
officer performing judicial, quasi- judicial or administrative
functions.
[22]
It is trite that the Court will not set aside proceedings on review
if it is satisfied that no substantial wrong was done to
the
applicant, i.e. where the irregularity was not likely to prejudice
the applicant.
[3]
[23]
As regards bias on the part of a judicial officer, it has been held
that it entails a departure from the standard of even-handed
justice
which the law requires from those who occupy judicial office.
Furthermore, not only actual bias but also the appearance
of bias
disqualifies a judicial officer from presiding or continuing to
preside over judicial proceedings.
[4]
[24]
The question is whether a reasonable, objective and informed person
would on the correct facts reasonably apprehend that the
Judge has
not or will not bring an impartial mind to bear on the adjudication
of the case, that is, a mind open to persuasion by
the evidence and
the submissions of counsel.
[5]
It is therefore the reasonable perception of the parties as to the
judicial officer’s impartiality that is of importance
in
determining bias on his part.
[25]
Since the application implicates the provisions of the
Domestic
Violence Act regarding
the procedure to be followed in granting a
protection order, I set out hereunder for the sake of completeness
and ease of comprehension,
the relevant provisions of this
legislation, as well as the interrelated provisions of the CPA.
[26]
The issuing of an interim protection order is governed by
section 5
of the
Domestic Violence Act which
in essence grants the court powers
to grant such a protection order upon a consideration of oral
evidence or evidence on affidavit.
[27]
In terms of
section 5(2)
the court is entitled,
without
notice to the respondent
[6]
,
to issue an interim protection order if it is satisfied that there is
prima
facie
evidence that the respondent is committing, or has committed an act
of domestic violence; complainant is suffering or may suffer
harm as
a result of such domestic violence; and the issuing of a protection
order is immediately necessary to protect the complainant
against
harm resulting from domestic violence. The granting of an interim
protection order on
ex
parte
basis is, therefore, sanctioned by this provision of the
Domestic
Violence Act.
[28
]
It is imperative in terms of
section 5(3)
of the same Act that the
respondent be served with the original interim protection order by
the clerk of the court, sheriff or
peace officer identified by the
court,
and such interim protection order must call him to show
cause on the return date specified in the order why the interim
protection
order should not be made final
. (my emphasis)
[29]
It bears mentioning that upon appearance in court an accused who has
been arrested in connection with an offence committed
against a
person in a domestic relationship has the onus of satisfying the
court that interests of justice permit his release on
bail. This is
in terms of the new section 60(11) of the CPA which provides:
‘‘
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence —
(a) referred to in
Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance
with the law,
unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the court
that exceptional
circumstances exist which in the interests of justice permit his or
her release;
(b) referred to in
Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained in custody until he or
she is dealt with in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces
evidence which satisfies the
court that the interests of justice permit his or her release; or
(c) contemplated in
section 59(1)(a)(ii) or (iii), the court shall order that the accused
be detained in custody until he or she
is dealt with in accordance
with the law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence
which satisfies the court that
the interests of justice permit his or her release.’’
[30]
And in terms of the new section 60(12) of the CPA, if the court is
satisfied that interests of justice permit the release of
the accused
who is charged with an offence committed against a person in a
domestic relationship, it must issue a final protection
order where
there is none already in place.
Discussion
[31]
I make a preliminary observation that even though the long hand
record of the proceedings made by the second respondent indicates
that the proceedings before her were mechanically recorded, no
transcript of proceedings and no reasons as may have been given
by
her for her decision were placed before us. There is no indication
ex
facie
the Notice of Motion that the second respondent was called upon in
terms of Uniform Rule 53 to furnish the said record with reasons
for
her decision. It is trite that litigants are ordinarily entitled to
reasons for a judicial decision following upon a hearing,
and, when a
judgment is appealed, written reasons are indispensable. Failure to
supply them will usually be a grave lapse of duty,
a breach of
litigants’ rights, and an impediment to the appeal process.
[7]
[32]
It must be emphasized that the record of second respondent’s
decision and reasons therefor are necessary in an application
for
review so that all relevant material be placed before court in order
for it to assess the lawfulness of the decision concerned.
[8]
This is so that light may be thrown on the decision making process
and the factors that were likely at play in the mind of the
decision
maker.
[9]
[33]
That being said, in the instant matter we have been furnished with a
clearly and legibly reproduced copy of the second respondent’s
long hand record of proceedings at which the impugned final
protection order was issued, and the various annexures to this
application.
Those annexures, as alluded to herein above, are the
third respondent’s application for a protection order; the
interim protection
order; and Form 6 being a form used to signify
that the interim protection order has been confirmed. These are the
portions of
the record on which the applicant bases his challenge of
the second respondent’s decision.
[34]
Therefore, there is before this Court sufficient material to enable
it in the specific circumstances of the instant matter,
to assess the
lawfulness of the second respondent’s decision. With this said,
I turn to deal with the merits of the application.
[35] In paragraph 4.2 of
her application for a protection order dated 24 March 2023 which she
made under oath, the third respondent
is invited to set out how
persons sharing her residence including children were affected by the
alleged acts of domestic. She stated
the following
(all sic)
:
“
When
my husband insults and getting physical with me they see him in his
state of anger and to myself being vulnerable and helpless.
The
children will cry and try to escape at night which poses risk to
them. They are psychologically affected. My sister is also
insulted
in the process of trying to intervene.”
[36]
In paragraph 5 which required her to set out the full details
regarding all incidents of domestic violence and also indicate
whether firearms or other dangerous weapons were used, what injuries
had been sustained and whether medical treatment was obtained,
the
applicant stated as follows
(all sic)
:
“
Insulted
intimidation emotionally abused beaten and pulled by the hair.
Dragged and strangled.”
[37]
The relief that the third respondent sought (as selected among
several other pre-listed reliefs) appears in paraph 7 of the
application form as follows:
“
It is required
that the Respondent must be ordered:
(e) not to enter the
Complainant’s residence situated at 2[…] i[…]
Ridge Ncambedlana, Mthatha.
(f) Not to enter the
complainant’s place of employment namely DBSA 0[…] S[…]
Street Fort Gale Mthatha.
(h) Not to commit any
other act, namely to get near the complainant and her children and
her sister, physically abuse the complainant
and any form of abuse.
Stop using her vehicle and any other property belonging to her.
[38]
These became the terms of the interim protection order that the
second respondent granted, with the following clauses, in particular:
“
3.1.2.1 not to
commit physical abuse, emotional verbal psychological abuse. Not to
enlist the help of another person to commit these
acts of domestic
violence.
3.1.2.8 Not to commit any
of the following acts to wit assault; threaten; enter my home/my
place of employment – not to enter
applicant’s home.”
[39]
The return date for the final determination of the application for
the protection order was set out in the interim order, as
already
mentioned, as 10 July 2023 in the domestic violence court, on which
date the applicant
in casu
would show cause why a final order
could not be issued. In the interim protection order, the applicant
was further warned of his
right to anticipate this return date on 24
hours’ notice to the third respondent and the court.
[40]
Below I set out the relevant portions of the long hand record of
proceedings which the second respondent made for the proceedings
of
31 March 2023 and which culminated in the final protection order
(all
sic)
:
“
Ms Ncaza
informs court that this is an unopposed schedule 1 application.
Accused and complainant are husband and wife. An interim
protection
order was applied for on 24/3/2023 and was consequently granted. As
the interim protection order was granted as per
DV 513/2023 and had
not been served on the respondent.
Mr. Qina confirms
appearance for the accused on private instructions. Confirms seeing
withdrawal statement but the case will be
referred to Dep social
workers. Not opposed to the granting of the final order.
For bail application
(section 60 11(c) proceedings mechanically recorded. In terms of
section 60 (11)(c) the court is satisfied
that interests of justice
permit the release of the accused on days. The final order as per TV
513 / 2023 is granted and served
upon accused in court F by Sergeant
Booi.
Accused is granted
bail and fixed at 1000 Rand cash.
The accused is ordered
to comply to come to court on each day on each court day starting
from 5 day of May 2023 at D court in Mthatha
until the case is
finalised.
They accused is
ordered to comply with their protection order conditions issued by
this court as per case DV 513/ 2023 with final
order issued today and
served in court (interim protection order and final order are
attached).
Must not commit
further criminal offences whilst still on bail.
3. 1 Accused must
undergo victim empowerment counselling.
Must not influence or
intimidate state witness.
Must not contact the
complainant Z[…] M[…] in any manner until this case is
finalised.
Must obey bail laws.
Section 67
of the
Criminal Procedure Act 61 of 1977
makes it an
offence to breach the bail conditions. The consequences of breach of
conditions are explained. . . Bail granted and
fixed at R1000.00 (one
thousand rand cash only). If paid accused is warned for 08.30 am in D
court and to remain in attendance
until his name is called and is
excused by the court.
Date suites Mr Qina
and the state.”
[41]
It is also evident from the annexed record of proceedings of 05 May
2023 that on that day the assault charge against the applicant
was
withdrawn as a result of the applicant’s completion of the
diversion programme. I assume that this follows the court’s
order on 31 March 2023 that the applicant attends as a condition of
his release on bail, the ‘victim empowerment program’.
[42]
As the Constitutional Court once said, judges (by parity of
reasoning, this applies to magistrates) take the oath of office
to
administer justice without fear or favour and
must
be assumed to be capable of disabusing their minds of any irrelevant
personal beliefs or predispositions.
[10]
[43]
According to the applicant, on his first appearance in court on 23
March 2023 on the charge of assault, his case was postponed
to 31
March 2023. However, he does not state that he appeared before the
second respondent. Nor does he state the reasons why his
case was
postponed with him being remanded in custody even though there was a
statement by the third respondent withdrawing the
charge against him.
There is no record for the proceedings of 23 March 2023 when he first
appeared in court. This Court must accept
that the second respondent
dealt with the applicant’s case for the first time on 31 March
2023.
[44]
I must interpose to mention that the CPA has recently been amended to
bring in line with the protections afforded by the law
to the victims
of domestic violence. The relevant amending Act is the Criminal Law
and Related Matters Amendment Act 12 of 2021
which came into effect
on 05 August 2022. It amended
sections 59
and
60
of the
Criminal
Procedure Act,
inter
alia
, in so far as these provisions are
brought in line with the imperative to give protection to the victims
of domestic violence,
among other things.
[45]
The amending Act does so, as I will demonstrate herein below, by
providing for a more stringent procedure in securing the release
of
an accused who is charged with an offence committed against a person
in a domestic violence. It also imposes a duty on the court
to ensure
that when an accused who is charged with an offence committed against
a person in a domestic relationship is released
on bail, there is in
place a protection order to ensure the safety of the victim of
domestic violence.
[46]
Important to note, however, is that ordinarily, after an interim
protection order has been issued, the granting of a final
protection
order is governed by
section 6(2)
of the
Domestic Violence Act which
provides:
(2) If the respondent
appears on the return date contemplated in
section 5(3)
or (4),
in
order to oppose the issuing of a protection order
, the court must
proceed to hear the matter and—
(a) consider any evidence
previously received in terms of
section 5(1)
;
(b) consider such further
affidavits or oral evidence as it may direct, which must form part of
the record of the proceedings; and
(c) if there is a dispute
of fact, the court—
(i) may on application of
the complainant or the respondent adjourn the proceedings to any time
and date on the terms and conditions
which the court deems
appropriate in order to afford the party concerned the opportunity to
adduce further evidence; and
(ii) must extend the
interim protection order.
[47]
On the other hand, the new
section 60(12)
introduces a dispensation
in terms of which the court ought to determine the release on bail of
an accused charged with an offence
committed against a person in a
domestic relationship.
This section provides:
(12) (a) The court may
make the release of an accused on bail subject to conditions which,
in the court’s opinion, are in
the interests of justice:
Provided that the interests of justice should be interpreted to
include, but not be limited to, the safety
of any person against whom
the offence in question has allegedly been committed.
(b) If the court is
satisfied that the interests of justice permit the release of an
accused on bail as provided for in subsection
(1), in respect of an
offence that was allegedly committed by the accused against any
person in a domestic relationship, as defined
in
section 1
of the
Domestic Violence Act, 1998
, with the accused,
and a protection
order as contemplated in that Act has not been issued against the
accused
,
the court must, after holding an enquiry, issue a
protection order referred to in section 6 of that Act against the
accused, where
after the provisions of that Act shall apply.”
(emphasis added)
[48]
Upon a reading of the provisions of section 60(12)
(b)
of the
CPA, it becomes clear that they apply only where there is no interim
protection order in place. Had the legislature intended
to include a
situation where an interim protection order is in place at the time
of the determination of an accused’s release
where he faces a
charge of an offence committed against a person in a domestic
relationship, it would have expressly provided so.
The interpretative
principle
expressio inius est exclusio alterius
which means
“
the specific inclusion of one implies the exclusion of the
other,”
is of importance in the circumstances of the
present case.
[49]
Here is where the anomaly is with the proceedings that took place
before the second respondent – there was already in
place an
interim protection order when the applicant appeared before her.
Therefore, it would have been sufficient for her to determine
the
applicant’s release and allow him to return to court on the
return date subject to his right to anticipate the return
date. This
would afford the applicant an opportunity to prepare his defence
fully and appropriately show cause on 10 July 2023,
as envisaged in
the interim protection order, why a final protection order could not
be granted. That did not happen, instead,
the applicant’s legal
representative at the time indicated to the court that there was no
objection to the granting of a
final protection order.
[50]
It is not discernible from the record how the acquiescence of the
applicant’s legal representative to the issuing of
a final
protection order came about in the circumstances set out in the
preceding paragraphs. The applicant does not deal with
this issue
pertinently in his founding affidavit save his assertion that his
right to legal representation was violated as he was
caused to face a
hearing without having had time to prepare for it. I digress to
mention that the applicant’s legal representative
was there in
order to take care of his interests.
[51]
The second respondent recorded only that the interim protection order
which was served on the applicant formed part of the
record of the
proceedings. It does not appear that the application for the
protection order was also before her and that she considered
the
evidence set out therein. This is where the evidence given by the
third respondent on oath is contained. However, no case has
been put
forward by the applicant that there was incompetence on the part of
his legal representative which resulted in an unjust
result in his
hearing. A finding cannot be made on the facts before us that he was
denied (competent and effective) legal representation.
[52]
That being the case, there is no record of the applicant confirming
that he was indeed conceding to the final protection order.
The
second respondent was informed by the prosecutor that the applicant
was served with the protection order and the application
therefor in
court. The applicant had from 31 March 2023 (being the date of
service on him of the interim protection order) to 09
July 2023 to
prepare his defence. His uncontroverted version is that he was served
with the application for the protection order
upon his arrival in
court and had no opportunity to prepare fully for the hearing of the
application. There is, furthermore, no
indication
ex facie
the
record that notice was given by the applicant to court that he wished
to anticipate the return date of the interim protection
order.
[53]
To the extent that in subjecting the applicant to an instant hearing
the second respondent may have thought that she was bound
to issue a
final protection order, and also bound by the concession made by the
applicant’s attorney, she committed an irregularity.
In
Matatiele
Municipality v President of the Republic of South Africa
[11]
it was held concessions that are wrong in law cannot bind the court.
[54]
It must be understood that the test for determining fairness in
proceedings or decision making process is objective with prejudice
as
the determining factor as a trial cannot be completely fair when the
accused is in any way prejudiced. The converse is that
the trial will
not be unfair where there is no prejudice. It is my finding that t
he
final protection order was therefore issued by the second respondent
arbitrarily. In so doing she committed an irregularity and
acted in
gross violation of the applicant’s right to be heard before an
adverse finding is made against him (the
audi
alteram partem
rule) and his right to
be afforded an opportunity to prepare fully for his hearing.
[55] The contention made
by the applicant that the second respondent improperly conflated
proceedings in his criminal case of assault
and the domestic violence
case must, in the present circumstances, be sustained.
[56]
Regarding the refusal to withdraw the charge of assault, it appears
on a reading of the second respondent’s record of
proceedings
that she made a decision to refer the assault matter to the social
workers or Department of Social Development.
I
should perhaps state as a reminder that in terms of section 6 of the
CPA the prosecutor has powers to withdraw the charge before
an
accused pleads to it.
This
is in line with the duty of the prosecutor to determine what charges
are to be preferred against an accused.
[57]
Put differently, at any time before the accused pleads to a charge
the prosecutor is still
dominus
litis
and
has full control over the charge. At this stage no
lis
has been established between the state and the accused. The court has
not become seized with any duty to determine issues between
the state
and the defence.
Because
the prosecutor is
dominus
litis
the
court has no control over the withdrawal of the charge before the
accused pleads to it.
[12]
[58]
It is under limited circumstances that it would be impermissible for
a prosecutor to withdraw a charge against an accused without
being
authorized thereto by the Director of Public Prosecutions. In the
context of an offence against a person in a domestic relationship,
section 18
of the
Domestic Violence Act provides
:
‘
(1) No prosecutor
may—
(a) refuse to institute a
prosecution; or
(b) withdraw a charge,
in respect of a
contravention of
section 17(1)(a)
, or in respect of any offence
against a person in a domestic relationship—
(i) involving the
infliction of grievous bodily harm or a dangerous wound against the
complainant or a related person; or
(ii) where the
complainant or a related person is threatened with a weapon, unless
authorised thereto, whether in general or in
any specific case, by a
Director of Public Prosecutions as contemplated in section 13(1)(a)
of the National Prosecuting Authority
Act, 1998 (Act 32 of 1998), or
a senior member of the prosecuting authority designated thereto in
writing by such a Director.’
[59]
The applicant’s legal representative merely submitted that he
had seen the withdrawal statement. Nothing further than
this appears
from the second respondent’s record of proceedings. There is no
indication either from the third respondent’s
application for a
protection order or the record of proceedings of 31 March 2023 that
the third respondent was threatened with
a weapon; or sustained
grievous bodily harm or a dangerous wound as a result of the alleged
assault by the applicant. There is
also no full detail of how the
applicant committed the acts of domestic violence.
[60]
Therefore, there does not appear to be any justification for the
second respondent’s refusal to withdraw the charge of
assault
against the applicant when it was brought to her attention that the
third respondent had sworn to a statement withdrawing
the assault
charge.
[61]
I must make it clear though, that since there was in place an interim
protection order when the applicant appeared before the
second
respondent, the withdrawal of the criminal charge of assault would
not affect its validity and operation until it was discharged
or
confirmed on the return date or such anticipated date as the case may
be.
[62]
The fact that the assault charge was not withdrawn would not in and
by itself have prejudiced the applicant. But the position
would have
been different if no protection order was already in place since in
such a case the issuing of a final protection order
(as envisaged in
section 60(12)
(b)
) would clearly have depended on the
existence of the assault committed against the person in a domestic
relationship being the
third respondent in this case.
[63]
The existence of malice or bad faith is not an issue which can be
observed in the abstract. It is
perforce
an issue which must be determined by drawing an inference from
established factual circumstances.
[13]
What
becomes clear from the record of the proceedings before the second
respondent is that far from malice and bias, she was aware
of her
obligation in terms of the law to ensure the protection of the victim
of domestic violence when it was brought to her attention
that the
applicant and the third respondent are married to each other. It is
regrettable that in doing so she failed to follow
the correct
procedure and committed an irregularity.
[64]
I am unable to make a finding on the facts of the instant matter that
her decision, albeit vitiated by the irregularity mentioned
herein
above, was actuated by malice nor was she biased. If anything, the
second respondent was vigilant and sensitive to her
obligations as she had before her a case involving domestic violence
which has
become a societal menace.
This
leads me to the issue of costs and the submissions made at the
hearing of the review.
Costs
[65]
In the light of the findings I made that the second respondent was
not actuated by malice neither was she biased, Mr
Zono
’s
submission that she be mulcted with costs cannot be sustained.
[66]
Courts do not generally grant costs against judicial officers in
relation to the performance by her/him of such functions solely
on
the ground that they acted incorrectly as to do so would unduly
hamper a judicial officer in the proper exercise of her/his
judicial
function.
[14]
The exception is
where it is established that the judicial officer acted with malice
or is guilty of grossly improper conduct.
[15]
[67]
There is no basis for saddling the first respondent with costs of
this review either. The court’s dictum in
Magistrate Du
Preez
is, with respect, apposite in this regard, where it held:
‘
There is no
justification for saddling the State with liability for costs where
the action of a judicial officer in his capacity
as such has been
corrected or set aside on review. Costs are not awarded against the
State when on appeal a magistrate's judgment
is set aside because he
is in error as to the law or in his findings of fact. It would be
surprising if, in the event of the same
result being achieved on
review, the State were to be held responsible for the successful
applicant's costs. Moreover, it is inappropriate
that the Court's
displeasure with the conduct of an appellant should result in an
order mulcting in costs the State which was neither
a party to the
suit nor responsible for the judicial officer's actions. The is no
room in such a case for the application of the
doctrine of
respondeant
superior
.’
[16]
[68]
In the result, the following order accordingly issues:
1. The final protection
order issued by the second respondent on 31 March 2023
under case
number DV 513/2024
, is hereby reviewed and set aside.
2. The matter is remitted
back to the Domestic Violence Court, Mthatha, for the determination
by another magistrate in accordance
with the procedure set out in
section 6(2)
of the
Domestic Violence Act, 116 of 1998
, whether a
final protection order should be issued, which determination shall be
on an
expedited basis
on a date no later than 14
days from the date of this order
.
3. The interim protection
order issued on 24 March 2023 under case number DV 513/2023
shall
remain valid until the said expedited date.
4. The Registrar of this
Court is directed to forthwith (and no later than 24 hours from the
time of this order) deliver or cause
to be delivered a copy of this
order to the clerk of the Domestic Violence Court, Mthatha.
5. Upon receipt of this
order, the clerk of the Domestic Violence Court, Mthatha
shall
immediately issue appropriate notice to the applicant and third
respondent to attend the hearing mentioned in (2) above.
6. There shall be no
order as to costs.
L.
RUSI
JUDGE
OF THE HIGH COURT
I
agree,
M.
NOTUNUNU
JUDGE
OF THE HIGH COURT (ACTING)
Appearances
:
Attorney
for the applicant
Mr
AS Zono
A.S.
Zono & Associates
Suite
153, 1st Floor
ECDC
Building
MTHATHA
Counsel
for the 1
st
respondent
and
2
nd
respondents
Adv.
N Zilwa
The
Office of the State Attorney, Mthatha
The
Broadcast House
94
Sissons Street, Fort Gale
MTHATHA
Date
heard
: 27
February 2024
Date
delivered
: 09
July 2024
[1]
Per
Malusi J.
[2]
This
amendment apparently relates to paragraph
3.1.2.8
of the interim protection order which reads: “Not to commit
any of the following acts to wit assault; threaten;
enter my home/my
place of employment – not to enter applicant’s home.”
On the face of the interim protection
order, there is no amendment
effected on paragraph 3.1.2.8. The terms of whatever such amendment
do not appear
ex
facie
the final protection order either.
[3]
Building
Improvements Finance Co (Pty) Ltd v Additional Magistrate,
Johannesburg, and Another
1978 (4) SA 790
(T) p 792H-793C.
[4]
Roberts
v S
[1999]
4 All SA 285
(A), at 292
e
–h,
para
25 and 26.
[5]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others - Judgment on recusal application
(CCT16/98)
[1999] ZACC 9
;
1999 (4) SA 147
;
1999 (7) BCLR 725
(4 June
1999) para 48.
[6]
Emphasis
intended.
[7]
Strategic
Liquor Services v Mvumbi NO
2010
(2) SA 92
(CC), at para 15.
[8]
Ekuphumleni
Resort (Pty) Ltd and Another v Eastern Cape Gambling and Betting
Board and Others
2010 (1) SA 228
, at 233 D-F.
[9]
Helen
Suzman Foundation v Judicial Service Commission
2018
(4) SA 1
(CC) at 9F.
[10]
SARFU
,
footnote 5 supra, para 48.
[11]
2006 (5) SA 47
(CC), para 66 and 67.
[12]
S
v Cordozo
1975
(1) SA 635
(T) at 638E – G.
[13]
Janse
Van Der Walt and Another v Minister of Safety and Security and
Others
(26171/06,26119/06) [2011] ZAGPJHC 15 (25 January 2011), para 48.
[14]
Magistrate
du Preez v Walker
1976 (4) SA 849
(A) at 852H – 853A – D.
[15]
Magistrate
du Preez,
at
853D;
Magistrate
Pangarker v Botha and Another
2015 (1) SA 503
(SCA) at 513G, para. 39.
[16]
At
856A.