Narodien v Andrews

• Jurisdiction: South Africa

Narodien v Andrews
2002 (3) SA 500 (C)

2002 (3) SA p500

Citation	2002 (3) SA 500 (C)
Case No	A914/2001
Court	Cape Provincial Division
Judge	Knoll J and Van Heerden J
Heard	November 26, 2001
Judgment	November 26, 2001

Flynote : Sleutelwoorde B

Husband and wife — Domestic violence — 'Protection order' in terms of Domestic Violence Act 116 of 1998 — Magistrate purporting to issue such order in terms of s 7(6) of Act but order consisting solely of provisions regarding access — Whether such order valid — Interpretation of s 7(6) of Act in manner empowering magistrate's court to make 'stand-alone' orders concerning access to C minor child in cases where parents embroiled in dispute about access amounting to radical departure from relevant common-law principles and statutory provisions relating to child welfare and statutory interpretation — Mischief which s 7(6) of Act meant to address was lack of express provision in family violence legislation for courts granting D family violence interdicts to make ancillary orders relating to contact with minor children, so ensuring that children at risk protected from domestic violence and that protection of adult applicant not compromised by arrangements relating to contact between respondent and any children living with applicant — This purpose far cry from interpretation of s 7(6), which would empower magistrate's court to E make 'protection order' under Act consisting solely of order granting access to minor child or regulating exercise of such access — Orders concerning access made in terms of s 7(6) to be ancillary to 'protection order' of kind envisaged in s 7(1) of Act — Stand-alone order as to access not to be legitimately regarded as falling within powers vested in magistrate's court by Act. F

Review — Jurisdiction — Of High Court to review and set aside 'protection order' purportedly made by magistrate's court in terms of provisions of Domestic Violence Act 116 of 1998 — Instant matter referred to High Court by magistrate seeking review of order varying 'protection order' issued by magistrate's court, not 'protection order' itself — High Court, however, finding that magistrate's court G not competent to issue particular 'protection order' in manner it had and that 'protection order' to be set aside — High Court faced with procedural problem — Neither automatic review provisions contained in s 302 of Criminal Procedure Act 51 of 1977, nor special review provisions under s 304(4) of same Act applicable to present H situation — Review proceedings of magistrate's court regulated by s 24 of Supreme Court Act 59 of 1959 and Rule 53 of Uniform Rules of Court — These provisions clearly contemplating that review be brought before High Court by party to proceedings sought to be reviewed — Neither magistrate, nor any party, asking for review of 'protection order' itself — High Court in its capacity as upper guardian of all minor children within its area of jurisdiction, I however, having inherent common-law jurisdiction mero motu to review so-called 'protection order' granted by magistrate's court in instant matter, as such order directly concerning interests of minor child within its area of jurisdiction — High Court having jurisdiction to review and set aside relevant 'protection order'. J

2002 (3) SA p501

Headnote : Kopnota

The present matter came before the Court for review at the request of one of the magistrates of the Cape Town magistrate's court. The A applicant and respondent were the biological parents of a boy, L, aged five, born out of wedlock. The applicant father had applied to the magistrate's court in terms of the Domestic Violence Act 116 of 1998 (the Act) for an interim protection order against the respondent mother. The affidavit accompanying the application had, however, contained no details of any 'acts of domestic violence' committed by B the respondent. It appeared from the evidence that the parties had been embroiled in a protracted dispute concerning the applicant's access to his son. The respondent had allegedly agreed on various occasions to allow the applicant to see the child but would not allow the child to spend an entire weekend with his father. The applicant wanted L to spend every second weekend with him from Friday 6 pm to C Sunday 6 pm. The relief applied for by the applicant in the magistrate's court was that he be granted 'access to his son' as stipulated.

The magistrate hearing the matter had issued an 'interim protection order' against the respondent. The order did not mention any acts of domestic violence but simply ordered the respondent not to prevent the applicant from having contact with his son. On the return date of the 'interim protection order' the respondent opposed the D issuing of a 'final protection order'. It appeared from the evidence that the respondent was unwilling to allow the child to remain with his father for an entire weekend because this would mean that he would miss out on the Sunday morning church service to which his mother habitually took him and, further, that the respondent would be unable to limit the opportunities which the child had to interact with E the applicant's family. The magistrate hearing the matter, however, confirmed the 'interim protection order', ordering the respondent to allow the applicant access to his son from Friday 7 pm to Sunday 4 pm every alternate weekend.

The respondent subsequently applied for the setting aside of the 'protection order'. The magistrate hearing that application varied F the previous order made by granting the applicant access to the child from 7 pm Friday to 7 pm Saturday and from 11 am Sunday to 5 pm Sunday every alternate weekend until such time as access could be determined by the High Court. The applicant had been present at court but, due to a misunderstanding, was not in court when the matter was heard. The 'variation order' was accordingly granted in his absence. The magistrate subsequently requested the High Court to set aside the G 'variation order' on the grounds that the order had been incorrectly granted in the absence of one of the parties. Following upon queries by the Court as to the legitimacy of the 'protection order', the magistrate referring the matter for review stated that the definition of 'domestic violence' in the Act included any controlling or abusive behaviour towards the complainant where such conduct harmed or could H cause imminent harm to the safety, health and well-being of the complainant and that the conduct complained of by the applicant in the instant matter had fallen within this definition. The magistrate stated further that the court had been satisfied that undue emotional hardship would be suffered by the applicant if a protection order were not issued immediately. The conduct of the respondent had therefore justified the granting of an interim, and thereafter final, protection I order against her by the court in terms of s 7(6) of the Act, consisting solely of an order granting the applicant access to his son and regulating the details of such access.

Held, that the magistrate's court had not been competent to issue any of the three orders made in this matter and that all those orders had to be set aside. This conclusion, however, created a procedural problem. Neither the automatic J

2002 (3) SA p502

review provisions contained in s 302 of the Criminal Procedure Act 51 of 1977 nor the special A review provisions under s 304(4) of the same Act applied to the present situation. Review proceedings of a magistrate's court were regulated by s 24 of the Supreme Court Act 59 of 1959 and Rule 53 of the Uniform Rules of Court. Section 24 read with Rule 53, however, clearly contemplated that the review be brought before the High Court by one of the parties to the proceedings sought to be reviewed. In the instant matter, the review had been requested by the magistrate, and B only as regards the order made varying the 'protection order' previously granted. Neither the magistrate, nor any of the parties, had asked for a review of the 'protection order' itself. (At 506A - B/C and D - E/F.)

Held, further, that the High Court in its capacity as upper guardian of all minor children within its area of jurisdiction, however, had an inherent common-law jurisdiction mero motu C to review the so-called 'protection orders' granted by the magistrate's court in the instant matter, as such orders directly concerned the interests of a minor child within its area of jurisdiction. (At 506E/F - F/G.)

Held, further, that the interpretation of the relevant provisions of the Act adhered to by the magistrate submitting the matter for review could not be accepted. While the concept of D 'domestic violence' was defined very broadly in s 1 of the Act, such definition had to be placed within the context of the Act as a whole and not be viewed in isolation. (At 508F/G - G and I/J.)

Held, further, that an interpretation of s 7(6) of the Act which would empower a magistrate's court to make 'stand-alone' orders concerning access to a minor child in cases where the parents were embroiled in a dispute about access amounted to a radical E departure from the relevant common-law principles and statutory provisions relating to child welfare and statutory interpretation. Such interpretation of s 7(6) of the Act could even mean, theoretically, that the magistrate's court would have territorial jurisdiction to make orders concerning access where the High Court would have no such jurisdiction. This construction offended against the tenet of statutory F interpretation that, as far as possible, statutes had to be interpreted so as not to give rise to absurd, anomalous or unreasonable results. (At 515B/C - C/D and 516B/C - C/D.)

Held, further, that the mischief which s 7(6) of the Act had been meant to address...