KV v WV

• Jurisdiction: South Africa
• Citation: 2020 (1) SACR 89 (KZP)

KV v WV
2020 (1) SACR 89 (KZP)

2020 (1) SACR p89

Citation	2020 (1) SACR 89 (KZP)
Case No	AR 72/2018
Court	KwaZulu-Natal Division, Pietermaritzburg
Judge	Chetty J and Masipa J
Heard	May 17, 2019
Judgment	September 13, 2019
Counsel	GM Parker for the appellant.; C van Reenen for the respondent.

Flynote : Sleutelwoorde

Domestic violence — Protection orders — When to be granted — Legislature specifically excluding 'unlawfulness' and only referring to conduct causing 'harm' — Domestic Violence Act 116 of 1998, s 1 sv 'domestic violence'.

Headnote : Kopnota

In an appeal against the confirmation by the magistrates' court of an interim protection order issued in terms of the Domestic Violence Act 116 of 1998 (the Act), the appellant argued that unlawfulness was a necessary requirement to determine whether conduct constituted domestic violence. The court a quo rejected this argument on the basis that there was nothing in the Act to provide for this and concluded that this was not what was contemplated in said Act and the Constitution. It found that, in any event, the appellant had in his own oral evidence, admitted to pushing and pulling

2020 (1) SACR p90

the respondent, leading to her falling to the floor, and this conduct constituted domestic violence in the form of physical abuse. In confirming the interim order, the court found that there was, however, insufficient evidence to conclude that there was also verbal abuse and therefore discharged the order in that regard.

Held, that, in defining domestic violence, the Act specifically excluded the word 'unlawfulness' and referred only to conduct that 'harms, or may cause imminent harm to, the safety, health or well-being of the complainant'. When the Act was enacted, the legislature was alive to the criminal and delictual principles dealing with abuse, but gave consideration to the rights protected in the Constitution, more particularly, the right to equality, freedom and security of the person, and violence against women and children. It introduced a wider form of protection by making reference to the word 'harm'. To give a more restrictive interpretation to the provisions of the Act would be to defeat the purposes for which it was passed. There was accordingly no reason to interfere with the interpretation by the court a quo. (See [28] and [31].) The appeal was accordingly dismissed.

Cases cited

Coetzee v Griessel [2011] ZAWCHC 318: referred to

Gaming Association of South Africa (KwaZulu-Natal) and Others v Premier, KwaZulu-Natal, and Others (No 1) 1997 (4) SA 494 (N) (1997 (4) BCLR 548): referred to

Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A): applied

Mnyandu v Padayachi 2017 (1) SA 151 (KZP) ([2016] 4 All SA 710): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): applied

Ndwandwe v Ndwandwe [2012] JOL 29617 (KZP): referred to

Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) ([2015] 4 All SA 417; [2015] ZASCA 111): dictum at 525 – 527 applied

Omar v Government of the Republic of South Africa & Others (Commission for Gender Equality, Amicus Curiae) 2006 (1) SACR 359 (CC) (2006 (2) SA 289; 2006 (2) BCLR 253): dictum in para [13] applied

S v Engelbrecht 2005 (2) SACR 41 (W): referred to

S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793; [1995] ZACC 4): dictum in para [112] applied

S v Trainor 2003 (1) SACR 35 (SCA) ([2003] 1 All SA 435): referred to.

Legislation cited

Statutes

The Domestic Violence Act 116 of 1998, s 1 sv 'domestic violence': see Juta's Statutes of South Africa 2018/19 vol 1 at 2-495 – 2-496.

Case Information

GM Parker for the appellant.

C van Reenen for the respondent.

An appeal against the confirmation of an interim protection order under the Domestic Violence Act 116 of 1998.

Order

The appellant's appeal is dismissed with costs.

2020 (1) SACR p91

Judgment

Masipa J (Chetty J concurring):

Introduction

[1] The appellant appeals against the judgment of the court a quo handed down on 17 August 2016 in the Durban Magistrates' Court which confirmed an interim order issued in terms of the Domestic Violence Act 116 of 1998 (the Act).

The facts

[2] The respondent approached the magistrates' court for an interim protection order against the appellant who is her husband. In her application, she highlighted the abuse she experienced, including physical, mental and emotional abuse According to the respondent, the appellant had threatened both her and their baby and forcefully removed them from the marital home. When she resisted this, he assaulted her.

[3] It is apparent from the record that the relationship between the appellant and the respondent was volatile. He had been evicted from her parental home in Phoenix on numerous occasions prior to the obtaining of the order appealed against. Pursuant to the last eviction, the appellant secured accommodation in a block of flats at the Bluff, which was close to his work and that of the respondent.

[4] After the appellant's relocation to the Bluff, the respondent continued to live in Phoenix with their minor child. Since the child was small and still being breastfed, the respondent took her to a daycare centre near her workplace. It became strenuous for the respondent and the child to travel daily from Phoenix to the Bluff, since they had to leave early in the morning and drive through heavy traffic. Despite her previous problems with the appellant, when he suggested that they move in with him, she accepted. This was during June 2016. While the parties initially lived as husband and wife, it appears that the respondent soon moved into a separate bedroom.

[5] On or about 5 August 2016 an argument ensued between the parties as a result of the respondent accessing the appellant's bank account and effecting certain transactions from the account. It is common cause that the appellant had previously provided the respondent with his banking log-in credentials. The appellant contends, however, that he had not authorised her to effect any payment on that day. The respondent contended that the appellant owed her moneys for expenses incurred when the baby was born and while they lived in Phoenix. Also, that they had agreed to share the expenses of the child equally, which the appellant was not doing. In view of this and on this particular day, she decided to access his bank account electronically and effected some payments which included the child's daycare fees.

[6] The appellant confronted the respondent about this and, following her response, he left their apartment. There was no further communication between them and, the next day, he left for his day shift. The respondent took the child and went to her parental...