Van der Merwe v Netsooki NO

• Jurisdiction: South Africa
• Judge: MF Legodi J
• Judgment Date: 27 October 2016
• Docket Number: 403/2016
• Hearing Date: 18 October 2016
• Citation: 2016 JDR 2122 (MN)

Legodi J

[1]

This is the review and setting aside of a decision of a district court Magistrate sitting at Carolina in terms of which an interim order granted ex-parte on 9 January 2015 in terms of section 3(2) of Protection From Harassment Act no. 17 of 2011 (the Act), was on 6 October 2015 confirmed.

[2]

In terms of section 3(2) of the Act if the court is satisfied that there is a prima facie evidence that the respondent is engaging or has engaged in harassment, harm is being or may be suffered by the complainant or a related person as a result of that conduct if a protection order is not issued immediately; and the protection to be accorded by the interim protection order is likely not to be achieved if prior notice of the application is given to the respondent, the court must, notwithstanding the fact that the respondent has not been given notice of the proceedings referred to in subsection (1), issue an interim protection order against the respondent, in the prescribed manner.

[3]

Subsection (1) of section 3 provides that the court must as soon as reasonably possible consider an application submitted to it in terms of section 2 (7) and any, for that purpose consider any additional evidence it deems fit, including oral evidence or evidence by affidavit which must form part of the record of the proceedings. In terms of subsection (7) of section 2, the application to court for protection order in terms of the Act must be lodged with the clerk of the court who must immediately submit the application and affidavits to the court. That is what has happened in the present case.

[4]

I do not find it necessary to deal with the merits of the application in terms of which the interim order which was later confirmed, seen in the light of the order which I intend to make hereunder. It suffices however, to mention that interim order granted ex-parte that is, without giving a notice to the respondent or any person likely to be affected by the order, ought to be granted in very deserving cases, for example, where harm is imminent and where indeed if notice is given, the protection to be accorded by the interim order is likely not to be achieved if prior notice of the application is given to the respondent. [1]

[5]

The present proceedings have been instituted as a review in terms of rule 53 of the Uniform Rules based on gross irregularity. The grounds of review can be summed up as follows: That the court a quo committed irregularity by not allowing the applicants to

2016 JDR 2122 p3

Legodi J

complete cross-examination of the second respondent, Ms Ntombi Kayise Zulu who was the complainant in the court a quo. The second ground appears to be that the court a quo misdirected itself in not affording the applicants, Messrs Zacharia Cornelius Johannes van der Merwe and Hermanus Johannes Wessels Bothma the opportunity to adduce further evidence in rebuttal or to allow them to file further affidavits. The present proceedings have been brought on unopposed basis.

[6]

Brief outline of what preceded the confirmation of the interim order on 6 October 2015 is necessary. The interim order was to this effect:

6.1

That the applicants in the present proceedings are prohibited from engaging in or attempting to harass the complainant, (the second respondent) in the present proceedings and her family who reside on the farm in question.

6.2

That the applicants are prohibited from enlisting the help of another person to engage in the harassment of the complainant and or related person and or committing any of inter alia, the following acts:

6.2.1

That the applicants must bring back the remaining cattle to the farm;

6.2.2

That the applicants should not harm any members of the second respondent's family who reside within the said farm.

[7]

The second respondent had approached the court a quo on the following alleged incidents or acts: She was residing at Bonnefoi Misluke farm together with her family. They had a number of cattle on the farm. She was the one who was looking after the cattle as her grandparents were too old to do anything. Whilst she is staying in Carolina town, she hired someone to look after the cattle. The owner of the farm gave them the permission to live on the farm until land claim was finalized. On 8 January 2015 at about 8h30 three white male persons entered the yard at the farm where the grandmother was staying. They were travelling in two different vehicles and on the other hand, there were about three male persons on horses. They opened the cattle and goats kraal and chased the goats to roam in...