IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: A188/2025
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES: ~
(3) REVISED: 'c\ e,
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In the matter between:
ANDRIES POTGIETER
And
THABO MASEMOLA
THUPAATLASE, AJ
JUDGMENT
Appellant
Respondent
(1) This is an appeal against the judgment and order delivered by learned
magistrate sitting in Pretoria magistrates' court Pretoria in Tshwane
Central district. The learned magistrates dismissed with costs an
application by the appellant to set aside a protection order granted
against him in favour of the respondent. The protection order was issued
in terms of the provisions of Protection from Harassment Act, 117 of
2017(the Act}.
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[2] The respondent. Mr Masemola obtained a final protection order against
the appellant on 31/05/2024. The order prohibited the appellant ·not to
communicate in any manner with the respondent and members of his
family mentioned in the said order. The appellant was subsequently
arrested after it was alleged by the respondent that he had violated the
condition of the protection.
{3] As a result thereof the appellant launched an application before the
magistrate's court for the setting aside of the order granted on
31/05/2024. The essence of the attack against the order was that the
respondent was abusing the court process to harass him and that there
was no basis for the existence of the order. Additionally, the appellant
argued on the merits there was no violation of the order as he did not
have any communication with the respondent.
[4] The magistrate in a brief judgment dismissed the application to set aside
the protection against the appellant and found that there was indeed
violation. The learned magistrate found the application to be 'null and
void'.
[5] Dissatisfied with the aforementioned judgment, the appellant appealed
to this court. It is clear that the magistrate appears not have appreciated
the nature of the application before her. It is also apparent from the
cursory reading of the reasons provided in support of her judgment the
application for the setting aside was done In a perfunctory manner.
[6] It is not clear on why the learned magistrate found it amiss that the
application was signed on 04/12/2024 whilst the founding affidavit was
commissioned on 26/11/2024. The learned found that the affidavit was
signed way back before the application. This is factually incorrect as the
period is only 8 days.
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[7) The court appeared to have appreciated that the protection order was
couched ambiguous language and decided to add an additional condition to the
existing order. Unfortunately, this was based on an assumption that the
appellant didn't understand the terms of the first order. This assumption is not
supported by the facts.
[8] I am satisfied that the magistrate misdirected herself in the manner she
dealt with the application. The failure to provide adequate reasons has been
dealt with in a number of judgments by our superior courts. In the case of
Vodacom (Pty) Ltd v Makate and Another1 at para 46 the court stated that:
'The court speaks through its judgment. It is thus in the judgment that one
expects to find evidence that the court discharged the duty of proper
consideration the way it should. An indicative factor -albeit not exclusive~ of the
performance of the duty of proper consideration is providing adequate reasons
for a judgment ( the duty to provide reasons).Woefully lacking reasons are
symptomatic of a flawed assessment of facts and issues. For present
purposes, flawed in the sense that amounts to failure of justice. We must not
lose sight of the fact the adequacy of reasons relate to a proper consideration
of the evidence and issues and - based on that- taking a reasoned decision.
That in no way, means that the reasons must be correct. I accept that
unsatisfactory reasoning does not necessarily equal to discharge the duty of
proper consideration'.
[91 The court at para 54 went further to underscore the importance of providing
reasons despite the simplicity of the facts to be decided. The court continued
to state:
'Reasons given for a court's decision help demonstrate that there was or wasn't
proper performance of the duty of proper consideration. If the facts are simple
and straightforward, not much may be required by way of reasons to support
the conclusion reached. But the reasons must still be enough to demonstrate
sufficiently that there compliance the duty·.
sufficiently that there compliance the duty·.
1 l202S) ZACC 13
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[10) I am satisfied that the learned magistrate misdirected herself and that
the judgment stands to be set aside
I propose the following order:
1. The appeal is hereby upheld with costs.
2. The order of the learned magistrate is set aside.
3. The matter is referred back to the Magistrate's Court to be dealt with
afresh and for judgment on the merits of the application. The referred
matter is to be heard by a different magistrate than the one that
presided initially.
I agree
' T THUPAA TLASE AJ
JUDGE OF THE HIGH COURT
PRETORIA
C
JUDG HCOURT
PRETORIA
On behalf of Appellant:
Instructed by:
On behalf of Respondent:
tnstructed by:
Date of hearing:
Date of Judgment:
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Adv. M De Meyer
F Van Wyk Incorporated
Mr Mpakathi
Mpakathi Inc. Attorneys
6 November 2025
12 February 2026