AM v SD

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Madondo DJP and Mossop J
• Judgment Date: 12 May 2023
• Citation: 2023 (2) SACR 296 (KZP)
• Hearing Date: 21 April 2023
• Counsel: A Baijnath for the appellant. ND Sokhela for the respondent, instructed by Legal Aid South Africa.
• Docket Number: AR 220/2022
• Court: KwaZulu-Natal Division, Pietermaritzburg

Mossop J (Madondo DJP concurring):

[1] On 30 March 2022 the respondent obtained a protection order from the Pietermaritzburg Magistrates' Court against the appellant in terms of s 9(4) of the Protection from Harassment Act 17 of 2011 (the Act).

[2] The terms of the protection order that was sought before the court a quo read as follows:

'The court is requested to —

7.1

prohibit the respondent from —

*7.1.1

engaging in or attempting to engage in harassment of the complainant;

*7.1.2

engaging in or attempting to engage in harassment of the related persons whose particulars are provided in paragraph 3, above;

*7.1.2

[sic] enlisting the help of another person to engage in harassment of the complainant/related person;

*7.1.3

committing any of the following act/s:

(a)

engaging in or attempting communication of the complainant verbally, physically, visually, or any other way (e.g. digitally, etc.)

(b)

approaching the complainant within one kilometre of the complainant.'

In para 3 of the application, dealing with related persons, appear two names, apparently being the names of a cousin of the complainant and the complainant's half-brother.

[3] The protection order sought appears on a preprinted document with spaces for relevant information to be inserted. The relief claimed in subparas 7.1.3(a) and (b) is inserted in manuscript, but all the other relief claimed is typed and forms part of the preprinted document. It will be observed that each preprinted potential order has an asterisk before it. There is no explanation for the appearance of the asterisk, but ordinarily it would mean that if something is not applicable, it should be deleted. None of the words marked with an asterisk have been deleted, and so it must be assumed that all the relief identified was granted.

[4] The judgment of the magistrate presiding is singularly unhelpful in determining precisely what relief was ultimately granted. The magistrate merely states at the end of her judgment that she grants the application and that:

'The complainant is given protection by this court.'

What is of importance is precisely what protection was given.

Mossop J (Madondo DJP concurring)

[5] It is worth mentioning in this regard that the appellant requested reasons from the magistrate for her decision. The magistrate sat with that request for over two months and then responded that she had nothing further to add. Magistrates should respond with promptitude to invitations to provide further reasons, and not dwell on matters unnecessarily. There is no explanation in this instance as to what delayed the magistrate for two months. Magistrates should also carefully consider their ex-tempore judgments and assess whether they have clearly and explicitly expressed themselves in their judgments before concluding that they have nothing to add to them. In this case the magistrate should have clarified whether she found that acts of harassment had been established or whether she found that acts of sexual harassment had been established. Clarification of what order was actually granted would have been of immeasurable assistance in this matter. I shall, however, assume that the order granted is that as set out in para 2 of this judgment. That order is now challenged on appeal before this court by the appellant.

[6] The respondent and the appellant are not blood relatives, but are linked through the fact that the appellant is married to the respondent's paternal aunt. He is thus the respondent's father's brother-in-law. The events that populate the respondent's version arose from contact that the complainant and the appellant had with each other over the years, primarily at family gatherings. Before getting to those events, it would be prudent to consider the requirements of the Act.

[7] The Act was enacted with the purpose of protecting citizens' rights of privacy, dignity, freedom and security of the person, and their right to equality as enshrined in the Constitution. On a practical level, it is intended to provide victims of harassment with a robust, swift, inexpensive and effective remedy against such harassment. In DVT v BMT [1] the Supreme Court of Appeal noted that while the Domestic Violence Act 116 of 1998 (the DVA) is gender-neutral in its content —

'the undisputed reality remains that domestic violence is systemic, pervasive and overwhelmingly gender-specific and reflects and reinforces patriarchal domination and does so in a particularly brutal form. It is therefore still the most vulnerable members of society, namely women and children, who are invariably the victims of domestic violence and thus the beneficiaries of the protection accorded by the [DVA].' [Footnote omitted.]

While it is acknowledged that what is being referred to is not the Act but the DVA, there can be no doubt that those words are equally applicable to the Act. Those that seek the benefit of the Act's protection appear to be overwhelmingly female.

[8] What the concept of harassment comprises is considered and defined in s 1 of the Act:

Mossop J (Madondo DJP concurring)

'''(H)arassment" 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 ensues; or

(iii)

sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will 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; . . . .'

[9] Sexual harassment has its own definition in the Act, and means any —

'(a)

unwelcome sexual attention from a person who knows or ought reasonably to know that such attention is unwelcome;

(b)

unwelcome explicit or implicit behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant or a related person in circumstances, which a reasonable person having regard to all the circumstances would have anticipated that the complainant or related person would be offended, humiliated or intimidated;

(c)

implied or expressed promise of reward for complying with a sexually-oriented request; or

(d)

...