In the case of Johnstone v SLS 2022 (1) SACR 250 (GJ), the legal complexities of harassment under the Domestic Violence Act 116 of 1998 are thoroughly explored. This case delves into how persistent unwanted communication, threats, and psychological abuse can constitute harassment within the scope of the Act. By examining the court’s decision to grant a final protection order, this case sheds light on the critical application of domestic violence laws, emphasizing the protection of victims from both physical and emotional abuse.
This case centres around the intricate dynamics of a relationship that shifted from affection to animosity, ultimately culminating in legal action under the Domestic Violence Act 116 of 1998 for alleged harassment.
The Appellant, Glen Johnstone, and the Respondent, a 21-year-old au pair, were engaged in a romantic relationship that concluded in May 2017. Despite their formal breakup, both parties continued to communicate, hoping to rekindle their relationship in the future.
However, over the subsequent months, their interactions became increasingly toxic and hostile, deteriorating to a point that necessitated legal scrutiny under the Domestic Violence Act due to harassment concerns.
The Respondent repeatedly requested that the Appellant cease all forms of contact, expressing her desire to end their communication entirely. Despite these unequivocal requests, the Appellant persisted in sending numerous WhatsApp messages and making frequent phone calls, which escalated into behaviours classified as harassment and threatening conduct.
On 13 September 2017, the Appellant threatened to “”make her life hell,”” a statement that marked a critical turning point. Following this threat, the Respondent reported a series of distressing incidents, including the creation of fake Instagram accounts in her name, false Gumtree advertisements using her details, and fraudulent police reports alleging her parents’parents’ possession of unlicensed firearms.
Additionally, a complaint was lodged against her at the school where she worked, accusing her of assaulting a child in her care. The Respondent attributed these acts to the Appellant, perceiving them as part of a concerted effort to intimidate and harass her under the broader context of domestic violence and harassment.
As the psychological impact of these actions mounted, the Respondent sought legal recourse through the Magistrate’sMagistrate’s Court, requesting an interim Protection Order for relief from the Appellant’sAppellant’s alleged harassment. This order was granted on 20 October 2017 to provide immediate protection.
However, the Appellant contested the interim order, leading to a comprehensive hearing where the court ultimately confirmed the final Protection Order on 13 August 2018. Throughout this legal process, the Appellant argued that his actions did not constitute harassment and characterised their communication as normal relationship dynamics. He further denied responsibility for the serious allegations, such as the fake social media accounts and false reports, suggesting that a former friend of the Respondent might have been involved instead.
The legal issues presented in this case are multifaceted, requiring careful consideration of both the specific facts of the case and the broader legal principles involved:
1. Definition of Harassment under the Domestic Violence Act: The primary legal issue is whether the Appellant ‘s conduct, characterised by persistent
communication and threatening behaviour, meets the legal definition of harassment outlined in the Domestic Violence Act 116 of 1998.
2. Justification for the Protection Order: Another critical issue is whether the Magistrate’s Court was justified in granting the final Protection Order based on the
evidence presented. This includes assessing whether the court correctly applied the legal standards and principles governing Protection Orders.
3. Evidentiary Standards in Domestic Violence Cases: The case raises important questions about the evidentiary standards required to obtain a Protection
Order under the Domestic Violence Act. Specifically, whether the evidence presented by the Respondent met the necessary standard of proof on a balance of
probabilities.
The Domestic Violence Act 116 of 1998 serves as the cornerstone of the legal framework in this case. The Act was enacted to provide comprehensive protection for victims of domestic violence, recognising the need to address a wide range of abusive behaviours that extend beyond physical violence.
The Act defines domestic violence broadly, encompassing not only physical abuse but also emotional, verbal, psychological, and economic abuse.
Additionally, the Act covers behaviours such as harassment, stalking, damage to property, and other forms of controlling behaviour that are aimed at intimidating or manipulating the victim.
Harassment under the Act is defined as engaging in a pattern of conduct that induces fear of harm. This can include behaviours such as repeatedly following, pursuing, or accosting a person, making persistent unwanted communications, or engaging in other actions that cause the victim to feel unsafe or distressed.
The Act is designed to provide victims with effective legal remedies, including the ability to obtain Protection Orders that restrict the abuser’s ability to contact or approach the victim.
Protection Orders under the Act can be issued in the interim, providing immediate relief pending a full hearing. To obtain a final Protection Order, the Applicant must establish, on a balance of probabilities, that domestic violence has occurred or is likely to occur.
The balance of probabilities is a civil standard of proof that requires the court to assess the evidence and determine which version of events is more likely to be true.
The Act also emphasises the importance of the victim’s safety and the need for swift judicial intervention to prevent further harm. Courts are empowered to grant interim Protection Orders ex parte (without the presence of the Respondent) when there is a risk of imminent harm to the victim. This provision ensures that victims can obtain immediate protection before a full hearing occurs.
Applying the Domestic Violence Act in this case requires a thorough analysis of the Appellant’s conduct in light of the legal definitions and standards outlined in the Act.
Despite her explicit requests for no further contact, the Appellant’s persistent communication with the Respondent demonstrates behaviour consistent with the legal definition of harassment.
The Appellant’s actions were not isolated incidents but rather part of a sustained effort to intimidate and control the Respondent.
The Appellant’s defence that his actions were part of the normal dynamics of their relationship fails to recognise the severity and persistence of his behaviour.
While communication between former partners may continue after the end of a relationship, the Appellant’s actions went far beyond what could be considered normal or acceptable.
His threats, coupled with the creation of fake social media accounts and false reports to authorities, indicate an intent to cause harm and distress to the Respondent.
In assessing whether the Appellant’s conduct constituted harassment, the court considered the cumulative effect of his actions on the Respondent. The court recognised that harassment is not limited to physical acts of violence but can also include psychological and emotional abuse.
The Appellant’s repeated and unwanted communications, combined with the threatening nature of his messages, created an environment of fear and intimidation for the Respondent. This behaviour, in turn, met the legal definition of harassment under the Domestic Violence Act.
The court’s decision to rely on Affidavit evidence rather than oral testimony is also significant. The Domestic Violence Act allows for using Affidavits in cases where the evidence is clear and compelling. In this case, the Affidavits provided a detailed account of the Appellant’s conduct, supported by documentary evidence such as text messages and social media posts.
Based on this evidence, the court was justified in granting the final Protection Order, as it met the required standard of proof on a balance of probabilities.
In analysing this case, it is essential to consider how similar issues have been addressed in other legal precedents.
The courts have consistently recognised that harassment and psychological abuse are severe forms of domestic violence that can have a profound impact on victims—in cases such as S v Baloyi (2000), the Constitutional Court emphasised the need for courts to take a broad and inclusive approach to defining domestic violence, recognising that non-physical forms of abuse can be just as harmful as physical violence.
The court’s decision in this case aligns with the principles established in Baloyi and other similar cases, where the courts have affirmed the need to protect victims from all forms of domestic violence, including harassment and psychological abuse.
By granting the final Protection Order, the court, in this case, reinforced the broad scope of the Domestic Violence Act and its commitment to providing effective legal remedies for victims.
Another relevant case is O v O (2003), where the court similarly upheld a Protection Order based on a pattern of harassing behaviour. The case involved a former partner who engaged in persistent and unwanted contact with the victim, leading to psychological distress.
The court recognised that such behaviour, even in the absence of physical violence, constituted domestic violence under the Act. This case further solidified the legal understanding that harassment can take many forms and that the law must be flexible enough to address the full spectrum of abusive behaviours.
The enactment and enforcement of domestic violence laws, including the Domestic Violence Act 116 of 1998, have had a profound impact on society and the legal system. These laws have shifted the focus from merely addressing physical violence to recognising and combating all forms of abuse, including psychological and emotional harm.
This broader understanding of domestic violence has led to more comprehensive protection for victims and a greater emphasis on early intervention and prevention.
The recognition of harassment as a form of domestic violence has been particularly significant. Harassment, which often involves repeated and unwanted communication or contact, can be deeply distressing for victims and can lead to long-term psychological harm.
By including harassment within the definition of domestic violence, the law acknowledges the severe impact that non-physical abuse can have on individuals. It provides a legal framework for addressing such behaviour.
In addition to providing legal protection for victims, domestic violence laws also serve an important educational function. They help to raise awareness about the various forms of abuse and the legal remedies available to victims.
This increased awareness has empowered more individuals to seek help and has led to a greater societal understanding of the complexities of domestic violence.
The court’s decision in this case serves as a vital affirmation of the legal protections available under the Domestic Violence Act, particularly in cases involving harassment and psychological abuse.
By granting the final Protection Order, the court recognised the Appellant ’s actions’ seriousness and their profound impact on the Respondent’s well-being. The judgment underscores that harassment, even in the absence of physical violence, constitutes a significant form of domestic violence that warrants judicial intervention.
The court’s order was comprehensive in scope and designed to provide the Respondent with immediate and long-term protection.
The key provisions of the order included a strict prohibition on all forms of contact between the Appellant and the Respondent, a restraining order to prevent the Appellant from approaching the Respondent, and specific prohibitions against any further harassing behaviour.
The court also implemented measures to monitor the Appellant’s compliance with the order, ensuring that the Respondent remained protected.
The court’s decision was based on several critical factors. First, the court found the Respondent’s evidence credible, supported by documentary proof of the Appellant’s persistent and unwanted communications.
The court emphasised the seriousness of the Appellant’s threats, recognising that verbal harassment, particularly when repeated and menacing, could have a significant psychological impact on the victim.
Moreover, the court considered the cumulative impact of the Appellant’s behaviour, acknowledging that the ongoing harassment created an environment of fear and distress for the Respondent.
This recognition of the psychological toll of harassment reflects a broader understanding of domestic violence, one that encompasses both physical and non-physical forms of abuse.
In applying the legal standards under the Domestic Violence Act, the court found that the Appellant’s conduct met the definition of harassment as outlined in the Act. Given the compelling nature of the documentary evidence presented, the court’s reliance on Affidavit evidence, rather than oral testimony, was deemed appropriate.
By focusing on the balance of probabilities, the court prioritised the Respondent’s need for protection while upholding the principles of justice.
The court’s judgment in this case has significant implications for the interpretation and application of the Domestic Violence Act in future cases.
It reinforces the broad scope of the Act, emphasising that all forms of domestic violence, including psychological and emotional abuse, must be taken seriously by the courts.
The decision also highlights the importance of preventive justice. By intervening early and decisively, the court aimed to prevent further harm to the Respondent and deter similar behaviour in the future.
Furthermore, the court’s order clearly states that harassment will not be tolerated, regardless of its form. This judgment is likely to have a deterrent effect, encouraging abusers to cease their harmful behaviour and empowering victims to seek the legal protections to which they are entitled.
The decision also carries a broader societal message. By addressing the psychological and emotional dimensions of domestic violence, the court contributes to a growing recognition that abuse is not limited to physical acts.
This broader understanding is crucial in ensuring that all victims of domestic violence receive the protection they need and deserve.
In conclusion, the court’s decision in this case aligns with the legislative intent of the Domestic Violence Act to provide comprehensive protection to victims of domestic violence.
It sets a strong precedent for future cases involving harassment and other forms of non-physical abuse, ensuring that victims have access to adequate legal remedies.
The court’s order powerfully affirms victims’ rights to live free from fear and intimidation and reinforces the legal system’s responsibility to uphold those rights.
This judgment not only protects the Respondent but also contributes to the evolving legal landscape that increasingly recognises the full spectrum of domestic violence.
It underscores the necessity for courts to take a holistic approach to domestic violence cases, considering the emotional and psychological impacts alongside physical harm.
The court’s clear and decisive action in this case exemplifies the proactive role that the judiciary can play in protecting victims and preventing further abuse.
Read More:
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Johnstone v SLS 2022 (1) SACR 250 (GJ)
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