REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A64/2025
REPORTABLE: NO (1)
(2)
(3)
OF INTEREST TO OTHER JUDGES: NO
REVISED: NO
16 January 2026
DATE
..,.
SIGNATURE
In the matter between:
HENDRIK PETRUS PRINS
and
MOLA TO JOSEPH KEKANA
DOMINGO , AJ
Introduction
JUDGMENT
Appellant
Respondent
[1] This is an appeal against the whole of the judgment and order of Magistrate Tjale
delivered on 12 June 2024, ("Judgment") in which the Magistrate dismissed the
appellant's application for a final protection order in terms of the Protection from
Harassment Act, No 17 of 2011 ("PHA"). In addition to the merits of the appeal,
the court was also called upon to determine a preliminary issue raised by the
respondent that that there was no application for condonation made by the
appellant for the late prosecution of the matter after noting the appeal.
Preliminary Issue
[2] It was submitted by the appellant that after the Magistrate dismissed the
appellant's application and on 5 July 2024, the appellant filed a written request
for reasons for the judgment in terms of Rule 51 (1) of the Magistrate's Court
Rules. Despite this request the Magistrate failed to provide the appellant with a
written judgment. The appellant filed his notice of appeal on the 16 October 2024,
in the absence of the written reasons for the judgment which was requested. The
respondent's notice of intention to oppose was served on 31 October 2024.
[3] The respondent contended that the appeal had lapsed due to non-compliance
with Rule 50(1) of the Uniform Court of Rules which states that "an appeal to the
court against the decision of a magistrate in a civil matter shall be prosecuted
within 60 days after noting such appeal, and unless so prosecuted it shall be
deemed to have lapsed."
[4] Furthermore, Rule 50(4) of the Uniform Court of Rules reads:
"(a) The appellant shall, within 40 days of noting the appeal, apply to the registrar
in writing and with notice to all other parties for the assignment of a date for the
hearing of the appeal and shall at the same time make available to the registrar
in writing his full residential and postal addresses and the address of his
attorney if he is represented.
(b) In the absence of such application by the appellant, the respondent may at any
time before the expiry of the period of 60 days referred to in subrule (1) apply
for a date of hearing in like manner.
(c) Upon receipt of such application from appellant or respondent, the appeal shall
be deemed duly prosecuted."
[5] In this matter, the appellant's practice note, heads of argument , list of authorities ,
chronology of events and the record of proceedings were all served on the
chronology of events and the record of proceedings were all served on the
respondent electronically on 21 January 2025 within the time period prescribed
in terms of Rule 50(4). It was also uploaded on Caselines on 21 January 2025.
2
The practice note was signed on the 17 January 2025 and lists the number of
the matter on the roll as "unknown". The appellant thus clearly intended to duly
prosecute the appeal. Therefore, no condonation application from the appellant
was required. A written application for an appeal date was applied for on the 4
August 2025. Should this application for an appeal date be regarded as irregular,
I am of the view that a rigid adherence to Rule 50(1) in the context of this matter
will not be in the interest of justice and will lead to an injustice having regard to
the substance of the merits of this matter. Furthermore , the respondent did not
raise any substantial prejudice should the appeal proceed. I am satisfied that the
appeal was duly prosecuted and therefore has not lapsed.
Background
[6] Before dealing with the grounds raised in the appellant's filed notice of appeal,
this court considers the background, context and evidence.
[7] According to the appellant, on or about the 18 May 2023 he requested the
respondent to vacate a dwelling house of which the appellant is the owner, and
which he alleged the respondent occupied unlawfully. The appellant averred that
he thereafter received threatening and intimidating voice note (Whatsapp)
messages from an associate of the respondent, a person known as Mr Steven
Khoza, saying they will come after the appellant. The appellant stated that
throughout the year he also received intimidating calls from the respondent and
his associates. The appellant took the court a quo into his confidence by
disclosing that initially he thought the threats were empty and used as delaying
tactics.
(8] The appellant lived next door to the house occupied by the respondent. The
appellant had workers who occupied the pool room on the property resided at by
the respondent. The appellant averred that on the evening of 16 November 2023,
the respondent called him and told him his workers must leave immediately. In
the respondent called him and told him his workers must leave immediately. In
response the appellant said, no and the respondent's response was that in 30
minutes if they are not gone, he will show the appellant what will happen. To
avoid confrontation the appellant instructed the workers to vacate the property.
The appellant then proceeded to state that in the next moment a car with a couple
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of men (about six men) arrived to see if the workers left. The appellant also
averred that he had suffered verbal abuse from the respondent continuously .
[9] The appellant noted that on 3 December 2023, he sent the respondent a
WhatsApp message that he must stop with the threats and abuse otherwise the
appellant would report him to the the police. The appellant stated that he went to
the property occupied by the respondent on 12 December 2023 with a team of
workers to remove gates and doors from the property. The respondent called the
police. According to the the appellant two police officers came and then left as
he informed them that he was the owner of the property. About 30 minutes later,
another police van arrived (second set of police), and the appellant stated that at
about 20h30, he received a call from a police sergeant about a complaint that he
(appellant) had intimidated the respondent's wife when he removed the gates.
According to the appellant he and his workers did not speak to any occupants on
the property. The police officer then requested the appellant to come outside to
talk to him. When the appellant went outside, two police officers approached him,
and the next moment the respondent and an unknown associate joined the police
and according to the appellant they intimidated him about the removal of the
gates and door from the property . The appellant said that the police sergeant
kept intimidating him and that the respondent kept making remarks and insults
that the appellant is a liar and a criminal. The next moment, according to the
appellant, the police sergeant arrested him and the sergeant said in Sotho, "don't
worry we will teach him." The appellant said he was put in a van which the police
sergeant drove recklessly , further intimidating the appellant. When the appellant
arrived at the police station, he was placed in a holding cell, without anyone
reading him his rights or requesting him to sign a form informing him of his rights.
reading him his rights or requesting him to sign a form informing him of his rights.
(1 0] The appellant averred that, while sitting in the cell, the respondent and his wife
arrived at the police station. The sergeant kept shouting at the appellant and said
that now the appellant's trouble starts because he (appellant) , according to the
respondent , verbally abused the respondent's wife and stole R300 000 in cash.
The appellant then stated that the police members , respondent , and
respondent's wife went outside and discussed amongst themselves in Sotho how
they were going to teach him a lesson by fabricating a case of robbery to be able
4
to send him to the police custody cells in Mamelodi. The appellant then informed
the sergeant that he understood Sotho and that he (appellant) would not be
framed.
[11] The appellant's wife and elderly father came to the police station to give him his
medication. At this time, the sergeant informed the appellant that he would be
transferred to Mamelodi and the appellant's family witnessed him being loaded
into a van. The appellant pleaded not to be taken to Mamelodi police custody
cells. He was then informed that he was white and not special. Again, the
appellant explained that they drove recklessly with him in the back of the van,
describing the journey as follows: " .. ... over speed bumps, breaking hard,
swerving, causing me to hang on for my life .... " The appellant could hear the
sergeant speaking on the phone with someone, and the appellant eventually
ended up at Villeria police custody cells for the night, while his family thought that
he was in Mamelodi. The appellant was eventually released after an investigation
was done by a detective who opened up a docket. The appellant averred that the
detective informed him that he could not understand why the appellant was
arrested.
[12] In conclusion, the appellant stated that the arrest and subsequent events
convinced him that the threats by the respondent are in fact real and that the
respondent is connected with members of the South African Police (SAPS). The
appellant became aware that the respondent's uncle works at the SAPS
intelligence. The appellant now fears for his life and that of his family.
[13] On 14 December 2023, the appellant applied for a protection order in terms of
s2 of PHA. According to the appellant the protection order was premised, in
essence, on the following facts:
13.1 The respondent (who is referred to as the "King" and/or "Kgosi" and who
unlawfully occupies one of the appellant's properties) used third parties
to send intimidating and threatening messages to the appellant in order
to send intimidating and threatening messages to the appellant in order
to prevent the appellant from evicting the respondent.
13.2 These messages included WhatsApp messages by a third party and
associate of the respondent, Steven Khoza, which contained threats.
5
13.3 The respondent acted in a threatening manner (together with certain
unknown individuals) when the appellant entered and/or attempted to
enter the property unlawfully occupied by the respondent. The
respondent further threatened the safety of the appellant's workers who
resided on the property.
13.4 The respondent made use of certain alleged connections he has within
the South African Police Services to have the appellant unlawfully
arrested in order to uteach him a lesson."
[14] On the 14 December 2024, the Magistrates Court for the District of Tshwane
North, Pretoria North, granted the appellant an interim protection order in terms
of s3 of the PHA. On the 5 February 2024, the respondent filed an answering
affidavit and on 2 April 2034, the respondent filed a supplementary answering
affidavit. Thereafter, and on 26 April the appellant filed a replying affidavit. On 12
June 2024, the Learned Magistrate dismissed the appellant's application for a
final protection order in terms of PHA. From the record of the proceedings of the
court a quo the appellant testified in court while respondent did not provide any
testimony in person in court. The respondent's legal representative made
representations on his behalf during argument before the magistrate.
[15] In regard to the claim made by the appellant that the respondent used third
parties to send intimidating and threatening messages, the respondent in his
answering affidavit states "these people were merely protecting me from his
actions of causing us to feel unsafe in our house which we occupied legally by
him removing all the safety features on the property and he admits this in his
affidavit."
[16] The respondent in his answering affidavit did not deny or provide an alternative
version but merely stated that " ... the contents are noted ... " in respect to the
following material averments as contained in the affidavit in support of the relief
claimed by the appellant in the application, namely:
claimed by the appellant in the application, namely:
"(9) Sitting in the cell, the next moment MJ Kekana and his wife arrived. The
sergeant kept shouting at me and said that now my trouble starts as MJ Kekana
says me and my team threatened his wife verbally and gained access to the
6
house ... and stole R300K in cash. Everybody went outside discussing in Sotho
how they are going to teach me, by fabricating a case of robbery to be able to
send me to Mamelodi cells. I informed the sergeant on his return that I can hear
Sotho and that they will not frame me.
(10) My wife and elderly father arrived at Sinoville Station to see where I am and
give me medication. At this point the sergeant informed me and them that I am
transferred to Mamelodi cells. I pleaded and was informed that I'm white and
not special. I said that I will not return from Mamelodi.
(13) This act of 12 December showed me that the threats are in fact real and that
MJ Kekana is connected with members of the SAPS. MJ Kekana 's uncle works
at SAPS intelligence. I fear for my life and my family and have gone through a
huge ordeal. "
These averments were therefore common cause facts.
Grounds of Appeal
[17] The grounds of appeal raised by the appellant are as follows and were expanded
in both written and oral argument:
17 .1 The Learned Magistrate erred in failing to apply the correct test in
analysing the evidence before her.
17 .2 The Learned Magistrate incorrectly applied the principles laid down in
Mnyandu v Padayachi1 failing to consider the repetitive element of the
different instances of harassment, focussing on an action specific
approach to the harassment.
17 .3 The Learned Magistrate was misdirected in finding that the conduct of
the "second set" of police was a civil matter.
17.4 The Learned Magistrate was further misdirected in finding that the
conduct of Steven Khoza did not constitute harassment. The Learned
Magistrate erred to consider the above evidence in light of the WhatsApp
1 (AR162/2014) [2016) ZAKZPHC 78.
7
audio recordings of 14 December 2023, which clearly threatened the
appellant.
17 .5 The Learned Magistrate erred in dismissing the appellant's application.
Legislative Framework and Legal Principles
(18) It is an established principle that in appeal proceedings the court of appeal may
interfere only when it appears that the court a quo had not exercised its discretion
judicially, or that it had been influenced by wrong principles or a misdirection on
the facts, or that it had reached a decision which resulted in an order which could
not reasonably have been made by a court properly directing itself to all the
relevant facts and principles .2
(19] The PHA provides a remedy against acts of harassment. In terms of s1 of PHA,
harassment is defined as follows :
"means directly or indirectly engaging in conduct that the respondent knows or ought to
know-
(a) Causes harm or inspires the reasonable belief that harm may be caused to
the complainant or a related person by unreasonably -
(i) Following, watching, pursuing or accosting of the complainant
or a related person, or loitering outside of or near the building or
place where the complainant or a related person resides, works,
carries on business, studies or happens to be;
(ii) Engaging in verbal, electronic or any other communication
aimed at the complainant or a related person, by any means,
whether or not conversation ensures; or
(iii) sending, delivering or causing the deliver of letters, telegrams,
packages, facsimiles, electronic mail or other objects to the
complainant or a related person or leaving them where they will
2 See Erasmus Superior Court Practice (2nd Edition , Volume 1) at RS 8, 2019, A2-72B. See also
Matoto v Free State Gambling and Liquor Authority and Others (987 /2017) [2018] ZASCA 110
(12 September 2018) at para 88.
8
be found by, given to, or brought to the attention of, the
complainant or a related person; or
(b) amounts to sexual harassment of the complainant or a related person."
[20] "Harm" in terms of s1 of PHA is defined as: " ... any mental, psychological,
physical or economic harm."
[21] The appellant directed the court to the case of Horner v Baranov where a full
bench held the following insofar as what constituted harassment:3
"The law on what constitutes harassment and how conduct alleged to be in violation of
the Act is to be evaluated is settled. In Myandu v Padayachi 2016 4 All SA 110 (KZP)
(Mnyandu), a full bench of this division conducted an extensive review of the genesis of
the Act and comparable legislation in other jurisdictions before expounding on the
correct interpretation of "harassment". It is the only judgment on the topic to which we
were referred and which we could find. It is therefore both appropriate and convenient
to quote from it to a somewhat larger degree than would usually be necessary.
The following paragraphs of Mnyandu bear directly on the issues before us:
'{44] Given the comprehensive ambit of the Act, it is essential that a consistent
approach be applied to the evaluation of the conduct complained of, although
the factual determination will depend on the circumstances under or context
within which the alleged "harassment" occurred. If the conduct against which
protection is offered by the Act were to be construed too widely, the
consequence would be a plethora of applications premised on conduct not
contemplated by the Act. On the other hand, too restrictive or narrow a
construal may unduly compromise the objectives of the Act and the
constitutional protection it offers. Therefore, the interpretation of the term
"harassment" as defined in the Act, is significant.
{65] It is apparent from these cases that the offence of harassment is not merely
constituted by a course of conduct that is oppressive and unreasonable but that
constituted by a course of conduct that is oppressive and unreasonable but that
the consequences or effect of the conduct ought not to cause a mere degree
of alarm; the contemplated harm is serious fear, alarm or distress. The legal
test is always an objective one: the conduct is calculated in an objective sense
3 (AR384/22) [2023] ZAKZPHC 126 (3 November 2023) at paras 4 and 5.
9
to cause alarm or distress and is objectively judged to be oppressive and
unacceptable.
[68) Based on its examination of international legislation, the SALRC
recommended that the recurrent element of the offence should be incorporated
in the definition of "harassment. " The definition in the Act states that
"harassment" is constituted by "directly or indirectly engaging in conduct ... "
However, although the definition does not refer to "a course of conduct" in my
view the conduct engaged in must be necessarily either have a repetitive
element which makes it oppressive and unreasonable, thereby tormenting or
inculcating serious fear or distress in the victim. Alternatively, the conduct must
be of such an overwhelmingly oppressive nature that a single act has the same
consequences, as in the case of a single protracted incident when the victim is
physically stalked."
Merits of the Appeal
[22] First ground of appeal: It was submitted by the appellant that the Learned
Magistrate erred in failing to apply the correct test in analysing the evidence
before her. According to the record of proceedings, to analyse whether
harassment occurred, the Magistrate held as follows: "We look at who started,
we look at who initiated the conflict? Who initiated you know, the whole set of
conflictsr Furthermore, the Magistrate held that, in the circumstances , " ... ajust,
fair and equitable decision under the circumstances is that your application is
dismissed."
[23) The appellant correctly argued that in terms of s9(4) of the PHA, the test/onus in
order to obtain a final protection order is neither "who initiated the conflicf', nor
what is "just and equitable" in the circumstances, but rather that: " ... the court
must, after a hearing as provided in subsection (2), issue a protection order in
the prescribed form if it finds, on a balance of probabilities, that the respondent
has engaged or is engaging in harassment."
[24) The respondent also submitted that it is imperative to note the definition of
[24) The respondent also submitted that it is imperative to note the definition of
"balance of probability" and that a court will rule that it is satisfied that an event
took place if it determines that, based on the evidence, the occurrence of the
event was more likely than not to have take place.
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[25] The court a quo in addressing the issue of onus in this matter stated the following:
"So, in Mnyandy it was said that the onus was on the party making an application in this
instance , ;tis you Mr Prins for a protection order in terms of the Act to prove on a balance
of probability that the respondent knew or ought to have known that his conduct would
cause harm or inspire the reasonable belief that harm will be caused."
[26] Having regard to the record of proceedings, the court a quo correctly cited the
test, on a balance of probabilities, but then failed to apply the test and onus and
incorrectly proceeded by considering the context of the evidence presented in
terms of "who initiated the conflict." The magistrate stated: "In terms of the cases,
I can cite many of them. We look at who started, we look at who started who
initiated the conflict? Who initiated you know, the whole set of conflicts." The
court a quo clearly erred in failing to apply the correct test in considering the
evidence and the aforesaid statements of the Magistrate clearly constitute a
gross misstatement of the law. Furthermore, the court a quo misdirected itself by
applying a test of what constitutes "a just, fair and equitable decision" in reaching
its decision that the application should be dismissed. The provisions of PHA does
not confer an equitable discretion to a court to grant protection orders, and where
an applicant satisfies the requirements for such an order, it may not be withheld
by a court on the principle ubi ius ibi remedium. The test in analysing the
evidence must be done on a "balance of probabilities" it is for this reason that the
appellant's first ground of appeal stands to be upheld.
(27] Second ground of appeal: It was submitted by the appellant that the Learned
Magistrate incorrectly applied the principles laid down in the Mnyandu4 by failing
to consider the repetitive element of the different instances of harassment,
focussing instead on an action specific approach to the harassment.
focussing instead on an action specific approach to the harassment.
[28] The respondent, on the other hand, submitted that the Magistrate did not have
to consider any repetitive element because there was no repetition of any threats
or even a single threat. It was further submitted by the respondent that the
appellant only went to the police station to obtain a protection order against the
respondent after the respondent reported him to the police which, according to
4 Supra note 1 at para 68.
11
the respondent, was an attempt by the appellant to "get equal" with the
respondent, thereby abusing the courts processes and state resources.
[29] Having regard to the record of proceedings, I am of the view that the magistrate
indeed did not take into account the repetitive element of the conduct of the
respondent. The repetitive nature of harassment is illustrated by threatening
WhatsApp messages from third parties, the incident where the appellant was
threatened to remove his workers whereafter six men arrived at the premises,
the threat to have the appellant arrested followed up by an actual arrest, and the
false allegation of a crime committed by appellant in respect of which the
appellant was unlawfully arrested by members of the police, clearly acting in
cahoots with the respondent who has a family member which is a ranking officer
in the police. The court a quo simply failed to appreciate the cumulative effect of
the sequence of events and incorrectly addressed the issues in isolation. For
example, in regard to the appellant's arrest the Magistrate remarked and held
that it is a civil matter and that the appellant "can go to a civil court then you can
send them a letter of demand, and then from there you can issue summons and
then you can claim unlawful arrest and detention if you were assaulted .. " The
court a quo further noted that the appellant is the "aggressor", and remarked that
" .. If you feel that someone is occupying your house unlawfully as Mr Nhome
correctly said, you do not just go and dispose him, that is what we call spoilage
and you are spoilating him of something that you gave him". The failure of the
court a quo to appreciate the cumulative effect of the common cause events as
it was illustrated by the facts of the case is clearly a misdirection on the facts and
the law.
[30] Having regard to the totality of evidence in this matter I am satisfied that conduct
engaged in by the respondent had a repetitive element which made it oppressive
engaged in by the respondent had a repetitive element which made it oppressive
and unreasonable, which did culminate in the inducement of serious fear and
distress in the appellant and his family. The appellant stated in the court a quo
that; "It is a a psychological hell that I go through every day because of the fact
financially I am not gaining, and I am stuck against someone that is connected
everywhere that is using state resources to run a battle against me." In the
premises, the second ground of appeal is upheld.
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[31] Third ground of appeal: It was submitted by the appellant that the Learned
Magistrate misdirected herself in finding that the conduct of the 'second set of
police' was a civil matter in the following terms: "If we have got police who acted
in that manner you said, I was very attentive, if they unlawfully arrested me, they
drove me in this manner when I was at the back of the bakkie. They detained me
and then without trial. Those are civil issues ... " In making this finding the
appellant submitted that the learned Magistrate erred by failing to have regard to
the whole body of evidence before her which showed that the respondent had a
tendency to make use of third parties to harass the appellant. This evidence is
detailed in the incidents of harassment detailed in the Annexures to the
appellant's founding affidavit. Secondly, when the police first came to the scene,
the police informed the respondent that the removal of the gate was a civil matter
and not a robbery. Thirdly , the respondent did not deny in his answering affidavit
that when the appellant was unlawfully detained and taken to the holding cells,
that the respondent discussed with the relevant police officials that they were
going to "teach" the appellant by fabricating a case against him; the respondent
noted and did not deny these allegations.
(32] In regard to this ground of appeal, the respondent submitted that the Learned
Magistrate could not have misdirected herself by referring to this as a civil matter
because the complaint from the appellant is the conduct of the police officers and
not the respondent, therefore the complaint should be laid against the police and
not the respondent.
(33) I agree with the appellant that the magistrate was misdirected in finding that the
conduct of the second set of police was a civil matter. The magistrate was
misdirected in this finding because she did not have regard to the totality of
evidence presented, she failed to take into account that all the threats and
evidence presented, she failed to take into account that all the threats and
intimidation by the respondent and his associates, culminated in the threat of an
arrest and then an actual arrest. The appellant correctly argued that the
respondent did not deny that he discussed with a police official in Sotho that they
were going to teach the appellant a lesson by fabricating a criminal case against
him. Thus, the Magistrate failed to take into account that the second police
incident was part of the repetitive pattern of conduct of harassment initiated and
13
instigated by the respondent. In the premises the third ground of appeal stands
to be upheld.
[34] Fourth ground of appeal: It was submitted by the appellant that the Learned
Magistrate was further misdirected in finding that the conduct of Steven Khoza
did not constitute harassment in that she required "facts not suspicions"; she
failed to consider that the evidence that reference to "my king" referred to the
respondent; she also disregarded the documentary evidence contained in the
appellant's founding papers which showed that Mr Khoza sent various
threatening messages on behalf of and/or at the behest of the respondent,
including messages which provided:
"From rikus, rikus must talk 2 my king not me I just protecting my king because people
of today the deal their own ways no problem if my king is safe"
"Mr prince us act like stunt fool greedy dog that don't get enough."
"You're a criminal your plans are going to brake."
[35] Furthermore, it was submitted by the appellant that the Learned Magistrate erred
to consider the above evidence in the proper context of the WhatsApp audio
recordings which threatened the appellant in the following manner:
"Mr Prins if you are talking to people you must know who you are talking to; because we
have spies everywhere, everyone is talking through us, everyone knows everything .
Now we get a call from your friend Phiri, and you know that friend of yours is my friend,
my real friend. I'm the one that make him to meet my King, don't play games with us you
must be careful. Come clean with us and everything will be all right, sharp, it's the last
warning from you, Mr Khoza, straight, good."
and
"Mr Rikus, its Mr Khoza, yes I'm talking we are here at Tecoma with our King, with our
boss, we are talk everything. You must know something from us at Tarentaal and
Moshathi because if everything can happen to our King to our boss, everything,
everything if he can suspect everything, you must know that we will think, we are people
everything if he can suspect everything, you must know that we will think, we are people
and we are black people this is our brother. We won't take a side of you, because we
already know that you are a criminal, you tried to rob us, you tried to rob us everything ,
14
you must know if if everything can happen to our King you must know that everything is
coming for you, sharp."
[36] It was submitted by the respondent that the Magistrate did not err in her finding
that the words uttered by Steven Khoza do not constitute harassment as
according to the respondent "it is clear as daylight that these were not threats but
warnings due to the conduct of the appellant. "
[37] Having regard to the above and the respondent's answering affidavit, the
respondent did not deny that Mr Khoza acted to protect him, therefore an
inference can be drawn that the respondent does acknowledge that the "my king
and or Kgosi" in the messages refered to him.
[38] In the record of proceedings, it is noted that the appellant requested the court a
quo to listen to the WhatsApp audio clips to actually hear the threatening tone of
the messages. It is not clear whether indeed the court a quo listened to the
messages as no mention is made of the tone of the messages in the Magistrate's
judgment.
[39] Having regard to the totality of evidence in regard to the content of the messages
from Mr Khoza to the appellant and in the context of the further incidences
against the appellant and his family, the Magistrate misdirected herself in not
finding that the conduct of Mr Khoza was indeed harassment. For these reasons,
the court upholds the appellant's fourth ground of appeal.
[40] Fifth ground of appeal: It was submitted by the appellant that ultimately the
Learned Magistrate erred in dismissing the appellant's application. Having regard
to the totality of evidence in this matter, I am satisfied that the appellant showed
on a balance of probabilities that the respondent had engaged or is engaging in
harassment as defined in the PHA. The respondent had also engaged in
harassment directly and indirectly (indirectly through Mr Khoza and his police
connections). The appellant in the court a quo said that since he applied and was
connections). The appellant in the court a quo said that since he applied and was
granted the interim protection order he has had peace in his life because the
respondent has been abiding to the protection order. An inference can be drawn
that the interim protection order was effective and that it indeed provided the
15
protection from harassment the appellant and his family sought. In the premises,
the court upholds the appellant's fifth ground of appeal.
Costs
[41] In terms of s16 of the PHA: "The court may only make an order as to costs against
any party if is satisfied that the party in question has acted frivolously , vexatiously
or unreasonably ."
[42] It is submitted by the appellant that when the respondent's conduct is considered
as a whole, the respondent acted unreasonably and male fide , thereby justifying
an order that the respondent pays the applicant's cost. The appellant directed
the court to the case of Public Protector v South African Reserve Bank5 where
the Constitutional Court held the following in respect of punitive cost orders:
"More than 100 years ago, Innes CJ stated the principle that costs on an attorney and
client scale are awarded when a court wishes to mark its disapproval of the conduct of
a litigant. Since then this principle has been endorsed and applied in a long line of cases
and remains applicable. Over the years, courts have awarded costs on an attorney and
client scale to mark their disapproval of fraudulent, dishonest or male tides (bad faith)
conduct ; vexatious conduct and conduct that amounts to an abuse of the process of
court."
[43] Having regard to the conduct of the respondent holistically, and the fact that in
this appeal the respondent failed to appear, I am persuaded that the
respondent's conduct as a whole was unreasonable and male fide and therefore
the court will award a punitive cost order.
[44] Having regard to the totality of evidence, after hearing counsel for the appellant,
and in default of the respondent , I hereby propose that the following order is
made:
44.1 The order of the Magistrates Court for District of
Tshwane North, held at Pretoria North under case number
716/2023 dated 12 June 2024 is set aside.
5 2019 (6) SA 253 (CC) at para 233.
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44.2 The interim protection order grant by the Magistrates Court
for the District of Tshwane North, held at Pretoria North
under case number 716/2023 on 14 December 2023 is
confirmed.
44.3 The appeal is upheld with costs on Scale B.
ACTING JUDGE OF THE HIGH COURT
PRETORIA
P VAN NIEKERK
JUDGE OF THE HIGH COURT
PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name
is first reflected and is handed down electronically by circulation to the parties'
legal representatives by email and by uploading it to the electronic file of this
matter on Caselines. This matter was heard in open court on the 20 November
2025. The date for hand down is deemed to be 16 January 2026.
APPEARANCES
For the appellant: ADV. BERNETTE BERGENTHUIN instructed by VAN
HEERDEN & KRUGEL ATTORNEYS
For the respondent: NO APPEARANCE
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