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Application for Protection Orders under the Domestic Violence Act (SCA Decision)

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Application for Protection Orders under the Domestic Violence Act (SCA Decision)

Application for Protection Orders under the Domestic Violence Act

Explore how the Domestic Violence Act safeguards victims’ rights and prevents misuse in divorce cases

Application for Protection Orders under the Domestic Violence Act

Case name: T v T

Citation: [2022] ZACSA 109

Court: Supreme Court of Appeal

Date of Judgment: 15 July 2022

Introduction to the Matter  

The Domestic Violence Act aims to provide victims of domestic violence with a quick and effective legal remedy.

It achieves this by setting out a simplified procedure for applying for protection orders.

It places an obligation to assist and protect victims of domestic violence on the courts and law enforcement officials.

Overview of the Matter at Hand 

This case was an appeal against a high court decision that had refused to grant a protection order to the appellant on the basis that he had failed to establish that the respondent had committed any act of domestic violence against him.

Legal Issues Raised in the Case 

The central legal issue in this case is the meaning of “verbal, emotional, or psychological abuse and harassment”, as defined in the Domestic Violence Act.

Relevance to Divorce and Family Law 

This case reiterates the purpose of the Domestic Violence Act, which is to protect real victims of domestic violence.

This case provides an example of how the court dealt with a matter where the law that was designed to protect vulnerable members of society was used as a tool for harassment.

Applicable Legislation 

The Domestic Violence Act.

Summary of the Relevant Legislation 

Section 4(1) affords a complainant the right to apply to court for a protection order.

Section 5(2) states that a court must grant an interim protection order if there is apparent evidence that:

  1. The respondent is committing or has committed an act of domestic violence; and
  1. The complainant may suffer undue hardship because of the domestic violence if the order is not issued immediately.

According to section 6(4) when an application is opposed, the court must issue a protection order if after hearing evidence on a balance of probabilities, it is satisfied that that the respondent is committing or has committed an act of domestic violence.

Explanation of How the Legislation Applies to the Case 

The court had to decide, after considering the evidence, whether the respondent committed an act of domestic violence and whether the appellant would suffer undue harm because of the domestic violence if the order was not issued.

Detailed Description of the Facts Leading up to the Case 

The appellant and respondent were married but living apart and going through a divorce when the case started.

The appellant brought an application for a protection order against the respondent alleging that she had sent him provocative, verbally abusive and vulgar SMSes between 11 December 2017 and 28 April 2018.

His application for a protection order failed at the Magistrate’s Court and High Court. The appellant then approached the Supreme Court of Appeal for relief.

Relationship Between the Parties Involved 

The appellant and respondent were husband and wife at the start of the case. They divorced before the case was finalised.

Issues to be Determined 

The court had to determine whether or not the facts of the matter and the evidence before it justified the issuing of a protection order in favour of the appellant. 

Primary Legal Questions Raised in the Case 

The legal question before the court was whether or not the content of the SMSes constituted verbal, emotional or psychological harassment as defined in the Domestic Violence Act.

Summary of the Arguments Made by Both Parties

The appellant argued that the SMSes sent to him by the respondent were derogatory and caused him verbal, emotional and psychological abuse.

The respondent denied that she had emotionally or otherwise abused the appellant and accused him of using legal processes to harass her.

She said the appellant had instead engaged in a range of unreasonable conduct such as:

  • reporting her attorney to the Legal Practice Council,
  • lodging a complaint against the judge that granted her interim maintenance of their two-year-old son, and
  • reporting her father to the council of his church, accusing him of arranging a baptism of their child without his approval. 

Evaluation of the Arguments 

The court scrutinised the content of the SMSes to determine if they constituted verbal, emotional and psychological harm.

The court said it is clear that the SMSes were written in anger and bitterness, but that they could not, by any stretch of the imagination be seen as insulting the appellant to the extent of emotional, verbal or psychological abuse.

Discussion of the Relevant Law 

The court restated the requirements for granting a protection order but did not provide further discussion of the law.

Court’s Decision and Order 

The court dismissed the appeal.

Explanation of the Reasoning Behind the Decision 

The Court said the appellant had failed to establish, on a balance of probabilities, that the respondent had committed an act of domestic violence.

The SMSes did not contain any language that could remotely be seen as abusive.

The court further said the contents and tone of the SMSes must be considered in the context of a fiercely contested divorce in which both parties made serious allegations against each other. 

Implications for Divorce and Family Law

This case restated the requirements for a court to grant a protection order – there must be apparent evidence of domestic violence, and the complainant must stand to suffer undue hardship because of the domestic violence if the protection order is not granted.

This case also shows that the court will not take kindly to individuals who misuse the purpose of the Act to harass others.

Lessons to be Learned from the Case for Potential Clients 

Potential clients are advised that the Domestic Violence Act exists to protect victims of domestic violence.

This protection offered in this law should be used in cases where there is actual violence taking place, not in bad faith to harass the other party or entrench dominance over them.

Recommendations for Individuals Facing Similar Situations 

Individuals who may need to apply for or oppose a protection order advised to consult with divorce and family law specialists.

Judges and Legal Teams 

Judges: Dambuza, Nicholls and Hughes JJA and Smith and Savage AJJA

For the Applicant: D de Kock

Instructed by Webbers Attorneys Inc, Bloemfontein

For the Defendant: J Pedzisai  

Instructed by Pedzisai-Pion Attorneys, Bloemfontein

Read the full Judgement

Read More:

How to obtain a Protection Order (Explained)

 

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