Johnstone v Shebab

• Jurisdiction: South Africa
• Citation: 2022 (1) SACR 250 (GJ)

Johnstone v Shebab
2022 (1) SACR 250 (GJ)

2022 (1) SACR p250

Citation	2022 (1) SACR 250 (GJ)
Case No	A 3167/18
Court	Gauteng Local Division, Johannesburg
Judge	Twala J and Windell J
Heard	February 11, 2020
Judgment	February 13, 2020
Counsel	A Saldulker for the appellant; E Xavier for the respondent.

Flynote : Sleutelwoorde

Domestic violence — Protection order — Final order — Meaning of 'harm' in DVA — Domestic Violence Act 116 of 1998.

Domestic violence — Protection order — Consideration of — Factual disputes on papers — Courts to be cautious in deciding probabilities in circumstances where affidavits settled by legal advisors with varying degrees of experience, skill and diligence.

Headnote : Kopnota

The appellant appealed against a final protection order made against him in terms of the Domestic Violence Act 116 of 1998 (the DVA) in respect of the respondent, his former girlfriend. The evidence revealed obsessive behaviour on the part of the appellant, with him sending her over 700 WhatsApp messages over a single weekend. The respondent complained that, after she ended her relationship with the appellant in May 2017, he continued to incessantly message and phone her, despite her requests that he stop doing so. In September 2017 he told the respondent that he would ruin her life. A few days later a fake Instagram account was opened in her name, using photographs that originated from the appellant's phone. False adverts were placed on Gumtree for boilermakers and technical assistants with her name and telephone number, and in October 2017 the principal at a school, attended by a boy she was looking after, received an email from a 'mom' complaining that the respondent was hitting the boy. This message included the respondent's full name and particulars of the motor vehicle she drove. The respondent's parents were also suddenly investigated by the police for the possession of unlicensed firearms, and she suspected that the appellant was the one who had called the police. The court a quo only took into consideration the WhatsApp messages after the break-up, and issued a final protection order for the appellant not to stalk, harass or engage in controlling and/or abusive behaviour towards the respondent, and not to communicate with her directly or indirectly in any way whatsoever.

Held, that there was no definition for the word 'harm' in the DVA, but the Protection from Harassment Act 17 of 2011 defined it as 'any mental, psychological, physical or economic harm'. There was no reason why 'harm' in the DVA should mean anything different. It was a court's task to objectively view each case on its own merits and determine whether a specific conduct complained of induced any such mental, psychological or emotional harm to a complainant. (See [21].)

Held, further, that, despite the rule relating to the evaluation of factual disputes on application papers, a court always had to be cautious about deciding probabilities in the face of conflicts of fact in affidavits. Affidavits were settled by legal advisors with varying degrees of experience, skill and diligence, and a litigant should not pay the price for an advisor's shortcomings. Judgment on the credibility of the deponent, without direct and obvious contradictions, should be left open. It remained then to establish whether the averments in the answering affidavit were such that they were

2022 (1) SACR p251

clearly untenable and could be rejected outright on the papers, or whether they gave rise to a genuine factual dispute relating to the subsequent events. (See [28].)

Held, further, that, if regard were had to the extracts of the WhatsApp messages, coupled with the events after September 2017, it was apparent that the appellant, over an extended period, committed numerous acts of domestic violence, including emotionally and psychologically abusing the respondent, as well as harassing her. If the text messages and facts were taken as a whole, and taking into consideration the great lengths the appellant would go to to control and abuse the respondent, the grant of a final protection order was warranted. The appeal was dismissed. (See [40].)

Cases cited

National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA) (2009 (2) SA 277; 2009 (4) BCLR 393; [2009] 2 All SA 243; [2009] ZASCA 1): referred to

Omar v Government of the Republic of South Africa and Others (Commission for Gender Equality, Amicus Curiae) 2006 (1) SACR 359 (CC) (2006 (2) SA 289; 2006 (2) BCLR 253): applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) ([1984] 2 All SA 366; [1984] ZASCA 51): dictum at 634G – H considered

S v Baloyi 2000 (1) SACR 81 (CC) (2000 (2) SA 425; 2000 (1) BCLR 86; [1999] ZACC 19): dictum in para [17] applied

S v Engelbrecht 2005 (2) SACR 41 (W): applied

Soffiantini v Mould 1956 (4) SA 150 (E): dictum at 154 applied

South Coast Furnishers CC v Secprop Investments (Pty) Ltd 2012 (3) SA 431 (KZP): referred to.

Legislation cited

Statutes

The Domestic Violence Act 116 of 1998: see Juta's Statutes of South Africa 2020/21 vol 1 at 2-496

The Protection from Harassment Act 17 of 2011: see Juta's Statutes of South Africa 2020/21 vol 1 at 2-652.

Case Information

A Saldulker for the appellant.

E Xavier for the respondent.

An appeal from the confirmation of a protection order made in terms of the Domestic Violence Act 116 of 1998.

Order

The appeal is dismissed with costs.

Judgment

Windell J (Twala J concurring):

Introduction

[1] This is an appeal against the granting of a final protection order in terms of the Domestic Violence Act 116 of 1998 (the Act) .

[2] The respondent (complainant in the court a quo) is a 21-year-old female, employed as an au pair. She applied for an interim protection order against the appellant, a 26-year-old male and her erstwhile boyfriend (the respondent in the court a quo). An interim protection order was granted against the appellant on 20 October 2017 and

2022 (1) SACR p252

Windell J (Twala J concurring)

confirmed on 13 August 2018. No oral evidence was called for by the court a quo and the matter was decided on affidavit.

[3] It is common cause that the appellant and the respondent were in a romantic relationship. Although the relationship ended in May 2017, the parties decided to keep contact and to 're-evaluate' their relationship in January 2018. After some time passed, the relationship between the parties turned sour and the respondent requested the appellant to stop any further contact with her. Despite several requests to stop any communication, the appellant continued to send the appellant numerous WhatsApp [1] messages per day and phoned her continually. After ultimately threatening her on 13 September 2017 that he would 'make her life hell', and that he had 'more than enough', two fake Instagram accounts were opened in the respondent's name, false Gumtree advertisements were posted with her personal details, her parents were reported and investigated by the South African Police Service (the SAPS) for possession of unlicensed firearms, and, on 18 October 2017, a complaint was made against her at St Benedict's School that she assaulted the child she was looking after. The respondent averred that the appellant was responsible for all these actions and that they amounted to harassment. She consequently approached the magistrates' court for an interim protection order on 20 October 2017.

[4] The appellant admitted that he sent the respondent hundreds of WhatsApp messages, phoned her constantly, tracked her phone, and that he threatened her on 13 September 2017 that he would make her life hell. He, however, contended that his actions did not constitute harassment and that he stopped communicating with the respondent weeks before she applied for the protection order. He submitted that his behaviour was normal, and the communication exchanged between them was part and parcel of their relationship. He regretted threatening the respondent on 13 September 2017, but said that he had apologised to her for his behaviour on the same day. He denied that he was responsible for any of the subsequent events and contended that one of the respondent's old schoolfriends might be responsible for bullying her.

[5] The court a quo found that the communication between the parties (during and after the relationship) had a certain volatility to it and that the texts, on a balance of probabilities, showed that the appellant committed 'acts of domestic violence'. The magistrate further found that in the absence of a court order the appellant would have continued committing acts of domestic violence and that he only stopped when the interim order was granted against him. The court a quo consequently issued a final protection order for the appellant not to commit the following acts of domestic violence: stalking, harassment, controlling and/or abusive behaviour towards the respondent and not to communicate with the respondent directly or indirectly in any way whatsoever. It is this finding that is the subject of this appeal.

2022 (1) SACR p253

Windell J (Twala J concurring)

[6] The Act came into operation in 1998. In the preamble the purpose of the Act is described as a measure —

'to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act, and thereby to convey that the State is committed to the elimination of domestic violence . . .'. [2]

[7] The Act recognises, inter alia, that victims of domestic violence are among the most vulnerable members of society; that domestic violence takes on many forms; and that it may be committed in a wide range of domestic relationships. The Act defines domestic violence as...