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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO LOCAL DIVISION, THOHOYANDOU
High Court Review Case No: 65/2025
Magistrate Case No: D534/2024
DATE: 13/2/2026
(on which review judgment is handed
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 13.02.2026
SIGNATURE:
In the matter between:
N[...] K[...] APPLICANT
and
M[...] M[...] A[...] RESPONDENT
JUDGMENT
SEMENYA DJP
[1] The applicant in this matter launched an application for a protection order in
terms of the provisions of the Domestic Violence Act 116 of 1998. The magistrate
sitting at Vuwani magistrate court forwarded the matter to this court before the
conclusion of the application in view of what he perceives to be an irregularity in the
proceedings before him.
[2] The background facts of this case are as follows:
The applicant approached the magistrate court on 18 December 2024 to
apply for a protection order against the respondent. On the same date, the
applicant completed Form 6 in line with the provisions of section 4(1) read
with Regulation 7(1) of the Domestic Violence Act. The applicant described
the respondent in this form as her stepfather who was in a love relationship
with her mother prior to her demise on 4 December 2024. She further stated
that the deceased mother and the respondent never married and were not
living together during the subsistence of their relationship.
[3] The conduct the applican t complained about in Form 6 is that, after the burial
of her mother, respondent came with his relatives to her home and instructed her
and her siblings to vacate the premises so that he can move in. He would come to
her house at night in the company of hi s relatives and shouted at them. She avers
that on the 16 December 2024, the respondent came with his uncle at about 1:00
and told them to move out if they do not want him to call the police.
[4] After considering the application, the magistrate issued an interim protection
order as provided in section 5(2) of the Domestic Violence Act. In the interim order,
the respondent was ordered not to physically or psychologically abuse the applicant,
not to assault the applicant or threaten to assault her, not to insult her with vulgar
words or to chase her out of her home. The respondent was called upon to attend
court on the 03 February 2025 to show cause why the interim order should not be
confirmed and made final. The magistrate issued a warrant of arrest as e nvisaged in
section 8(1) of the Domestic Violence Act which directed the police to execute it
whenever it became necessary to do so. On the 18 December 2024, Mr Mudzusi, an
whenever it became necessary to do so. On the 18 December 2024, Mr Mudzusi, an
administrative clerk at magistrate Vuwani magistrate court, served the interim orde r
on the respondent.
[5] The record of the proceedings of 2 February 2025 is missing. However, the
parties appeared before the magistrate on the 6 February 2025. The magistrate
before whom the parties appeared noted on the record of the proceedings th at the
parties were before him 3 June 202[5] in a different case. In that matter the
respondent in this matter was the complainant and the applicant in this matter was
the respondent. The magistrate postponed the case to 12 March 2025 for hearing
before another judicial officer.
[6] The applicant failed to appear before court on the 12 March 2025. The
respondent appeared. The matter was struck off the roll. On the 13 March 2025, the
applicant filed an affidavit in which she stated that she did not appear before court on
the 12 March 2025 because she thought that the date of court was the 13 March
2025. The explanation was accepted and the case was reinstated.
[7] On the 22 July 2025, the parties appeared before court for hearing of the
application. The a pplicant was represented by Ms Simango of the Legal Aid South
Africa. The respondent was represented by Adv Tejada as instructed by Mlambo
Attorneys. Before the hearing of evidence could commence, Adv Tejada addressed
the court and stated that the interim order which was issued on the 18 December
2024 is no longer of force and effect and the court cannot proceed to hear the matter
on that basis. He argued that the court did not extend the interim order after the
applicant failed to attend court on the 12 March 2025.
[8] Section 6 of the Domestic Violence Act provides as follows:
"6. Issuing of final protection order
(1) If the respondent does not appear on a return date contemplated in
section 5(3), and if the court is satisfied that-
(a) proper service has been effected on the respondent; and
(b) the application contains prima facie evidence that the respondent h as
committed or is committing an act of domestic violence,
the court must issue a final protection order in the prescribed form.
the court must issue a final protection order in the prescribed form.
(1A) If the respondent does not appear on a return date contemplated in
section 5(4), and if the court is satisfied that pr oper service has been effected
on the respondent, the court must proceed to hear the matter and if the court
after considering-
(a) any evidence previously received in terms of section 5(1); and
(b) such further affidavits or oral evidence as it may di rect, that was
adduced during the hearing, which must form part of the record of the
proceedings,
finds, on a balance of probabilities, that the respondent has committed or is
committing an act of domestic violence, the court must issue a final protecti on
order in the prescribed form.
(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 t he
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.
(2A)
(a) If the r espondent appears but the complainant does not appear, or
where both the respondent and the complainant do not appear, on the return
date referred to in section 5(3), the court must extend the interim protection
order and the return date, and the clerk of the court must notify-
(i) the complainant; or
(ii) the complainant and the respondent, where both did not appear,
in the prescribed form and manner of the extended date.
(b) The court may discharge the interim protection order if the complainant
does not appear on the extended date.
(2B)
(a) If the respondent appears but the complainant does not appear, or
where both the respondent and the complainant do not appear, on t he return
date referred to in section 5(4), the court may, after due consideration of any
evidence previously received in terms of section 5(1)-
(i) set a new return date for the hearing of oral evidence; or
(ii) discharge the matter.
(b) The clerk of the court must, in the prescribed form and manner, notify
the parties of the extended date in terms of paragraph (a)(i).
[9] Based on the submissions made by Adv Tejada, the magistrate forwarded this
matter to this court for review in terms of section 304A of the Criminal Procedure Act
51 of 1977. However, in terms of section 16 of the Domestic Violence Act, review
and appeal of the orders made in terms of this Act are to be dealt with in terms of the
Magistrate Court Act, 32 of 1944 and the Superior C ourts Act, 10 of 2013 and not in
terms of the Criminal Procedure Act.
[10] Section 22 of the superior Courts Act provides that:
22. Grounds for review of proceedings of Magistrates' Court
(1) The grounds upon which the proceedings of any Magistrates' Court
may be brought under review before a court of a Division are-
(a) absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice or corruption on the part o f the
presiding judicial officer;
(c) gross irregularity in the proceedings; and
(d) the admission of inadmissible or incompetent evidence or the rejection
of admissible or competent evidence.
[11] The provisions of section 6 of the domestic Violenc e Act are peremptory. The
magistrate must extend the interim order in circumstance where the complainant or
the respondent, or where both fail to attend court. There is no provision for the
striking of the matter off the roll. The magistrate is further authorised to either to set a
new date or to discharge the matter in cases where the absenteeism is persisting.
[12] The magistrate committed gross irregularity by failing to extend the interim
protection order. The interim order has therefore lapsed. It can not be reinstated in
the manner the magistrate did in this case. The proceedings stand to be set aside.
The applicant may apply for another protection order, if she so desires.
[13] In the result I make the following order:
The proceedings in this case are set aside.
MV SEMENYA
DEPUTY JUDGE PRESIDENT, LIMPOPO DIVISION
I agree.
TC TSHIDADA
JUDGE OF THE HIGH COURT
LIMPOPO LOCAL DIVISION, THOHOYANDOU