S v Zondani

• Jurisdiction: South Africa
• Judge: Dhlodhlo ADJP and Hole AJ
• Judgment Date: 13 June 2005
• Docket Number: CA&R 21/05
• Court: Ciskei High Court
• Hearing Date: 13 June 2005
• Citation: 2005 (2) SACR 304 (Ck)

Hole AJ:

[1] This matter came on automatic review pursuant to the provisions of s 302 of the Criminal Procedure Act 51 of 1977 (CPA).

[2] The accused, a 29-year-old male person appeared before the I magistrate, Keiskammahoek, on a charge of contravening an interim protection order made in terms of s 5 of the Domestic Violence Act 116 of 1998. He was convicted as charged. During the course of the trial the accused was also convicted of failing to appear after having been warned to do so. J

Hole AJ

[3] In respect of the domestic violence conviction the accused was sentenced to undergo six months' imprisonment while he was A cautioned and discharged on the conviction of failing to appear.

[4] The record reflects that the order the accused contravened was an interim order made on 14 February 2005 and returnable on 25 February (year not stated) at 08h30. B

[5] In answer to a query from this Court the magistrate replied:

'I agree that there is no evidence on the record that a final protection order was made. The conviction of the accused was based solely on the interim protection order, which was granted on 14 February 2005 as an interim measure to protect the complainant from being abused by the accused. That interim order was not set C aside, it was still in force when accused contravened that interim protection order.'

(My emphasis.)

[6] An interim protection order made in terms of s 5 of the Domestic Violence Act is exactly what it is called. It is a protective order of a provisional nature which is subject to confirmation or being D discharged on the return date. It is quite different in that respect to an order (final) made in terms of s 6 of that Act. With respect to a final order s 6(7) provides:

'Subject to the provisions of s 7(7), a protection order issued in terms of this section remains in force until it is set aside, and E the execution of such order shall not be automatically suspended upon the noting of an appeal.'

[7] By virtue of the interim protection order being in the nature of interim relief, the respondent may, as provided for in s 5(9), anticipate the return date for the purpose of having the order discharged or made final. F

[8] On the basis of the aforegoing and the allegation made in the charge- sheet that the order allegedly breached was in force, it follows that the State bore the onus not only to prove the acts allegedly performed by the accused in breach of such order but also...