S v BL

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Erasmus J and Salie J
• Judgment Date: 26 February 2024
• Citation: 2024 (1) SACR 537 (WCC)
• Hearing Date: 26 February 2024
• Counsel: Counsel details not supplied
• Docket Number: 54/2024
• Court: Western Cape Division, Cape Town

Salie J (Erasmus J concurring):

[1] This matter came before this court as an automatic review in terms of the Criminal Procedure Act 51/1977, as amended, against the conviction and sentence by the magistrates' court for the district of Caledon on 23 and 27 November 2023, respectively.

Salie J (Erasmus J concurring)

[2] The accused had been charged with two counts of the contravention of the Domestic Violence Act 116 of 1998 (the DVA). It is alleged that the accused had wrongfully and unlawfully contravened the terms of a protection order on 5 June 2023 and 6 June 2023 which had been obtained against him by the complainant, his sister. The relevant condition of the protection order, alleged to have been breached by him, reads as follows

'3.1

The Court orders that:

. . .

3.1.2

An interim Protection Order is granted; and the Respondent is ordered —

3.1.2.1

not to commit the following act(s) of domestic violence [ — ] threaten with violence and/or swear at the applicant and/or related persons.'

[3] The aforesaid interim protection order was made final on the return day and is still in force. The accused pleaded not guilty, elected to waive legal representation and conducted his own defence. At the end of the trial, he was convicted in respect of count 1, acquitted in respect of count 2 and sentenced to 12 months' imprisonment wholly suspended for a period of five years on certain conditions, which included that he not be convicted of a contravention of s 17 of the DVA within the period of suspension

[4] The facts briefly are that the accused, together with his sister, Mrs DL (first complainant), and her children, reside at their family home, owned by their mother. It is not disputed that there is tension between the accused and his sister. She testified that her children were studying for the school exams on the evening of 5 June 2023, when the accused came into the main house and prepared food for himself. He proceeded to play music loudly, at which the children requested him to turn down the volume. After the accused refused to oblige, second complainant, the 17-year-old daughter of Mrs DL, proceeded to turn the volume down. She testified further that the accused made a reproachful protest and threatened her daughter with assault, should she repeat the lowering of the volume. Mrs DL testified that the accused cautioned that, if her daughter touched the music again, he would assault them. The threat, 'gaan ek julle in jou ma se pxxx in slaan', was made in their home language of Afrikaans. The latter phrase is a vulgar manner of speaking, loosely translated as him threatening to beat them into her mother's vagina. The accused thereafter increased the volume, and expressed profanities in a similar vein, and is alleged to have stated: 'vat weer aan my pxxx se musiek, julle is in julle pxxx', meaning that if she again interferes with the music then they would be in...