---

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION,

PRETORIA

 

 

(1)           REPORTABLE: YES / NO

(2)           OF INTEREST TO OTHER JUDGES: YES/NO

(3)           REVISED.

 

                                                                                    APPEAL CASE NUMBER: A135/2019

                                                                   A QUO CASE NUMBER: H660/2018

 

 

IN THE MATTER BETWEEN

 

SEFULARO MASECHABA                                                                                    APPLELLANT

 

AND

 

TSHUKUDU MPHO                                                                                                 RESPONDENT

 

JUDGMENT

 

CORAM: MABUSE J et CEYLON AJ

 

A.    Introduction:

 

[1]   This is an appeal against the whole of the judgment and order of the Court a quo (Mr R Ramonetha), dated 20 March 2019.

 

[2]   The Appellant’s Notice of Appeal dated 13 May 2019 fully details the grounds of appeal. They will therefore not be repeated herein. A discussion of the main points will follow within the assessment herein below.

 

[3]   The Respondent applied for a protection order against the Appellant in terms    of the Protection from Harassment Act 17 of 2011(the Act) on 28 December 2018. The Court a quo considered the application and granted the final order on 20 March 2019.

 

[4]   In terms of the said Order the Appellant was prohibited from contacting, insulting, or threatening the Respondent.

 

[5]   It is against this order that the appeal herein is launched.

 

[6]   No opposing or replying papers were filed by the parties in the Court a quo.

B.  Facts:

      [7] It appears from the reasons for the judgement, that the parties had engaged in a love triangle with a certain professional doctor and had exchanged text messages and telephone calls with each other.

[8]  In her application for the protection order, the Respondent provided the following details of all incidents of harassment:

      “Masechaba Sefularo sent me text messages from November 2015, insulting        me. I continued to receive calls from her and her sister Bonolo.

   - In December 2017, Masechaba continued to call me, insulting me, and       saying she will beat me up.

   - She called me again on the 08^{th of} January 2018. She continued to insult me          and threating me.”

[9]  This alleged conduct of the Appellant caused the Respondent to approach the Court a quo for a protection order. The Appellant was ordered to show cause on 20 March 2019 (return date) why the Court should not issue a final protection order against her.

[10] According to the Court a quo, on 20 March 2019, the Appellant was given an opportunity to rebut the evidence of the Respondent or to challenge the rule nisi granted on 28 December 2018. According to the Court a quo the interim order was granted because it was not in dispute that the Appellant had texted the Respondent; that the parties had exchanged unpleasant text messages and had telephoned each other because of being in a love triangle with a certain professional doctor. Accordingly, the Court a quo found that good cause has been shown for the rule nisi to be confirmed.

C.  Condonation Application:

[11] The Appellant made an application for condonation for the late filing of her heads of argument dated 17 January 2020. The application was not opposed.

[12] This Court has seriously considered the grounds raised by the Appellant, the requirements applicable to condonation applications and was convinced that worthy cause has been shown for the lateness and default. This Court also considered the fact that the application was unopposed and that there would be no prejudice to the Respondent if condonation was granted.

[13] In view of the above, this Court is satisfied that the condonation application should succeed and that no cost order in relation thereto should be made.

D.  Application that the Supplementary Heads of arguments be Permitted:

      [14] The Appellant requested leave from this Court to file the Supplementary Heads of argument. The Respondent did not oppose this application. In light thereof that there was no mala fide on the part of the Appellant; that there was no prejudice to the Respondent and that it was in the interest of justice, the application for condonation was granted and no order as to costs in respect thereof was made.

E. Supplemented Notice of Appeal

[15] Even though the parties had referred to the Supplementary Notice of Appeal in their Heads of argument, no such document could be found anywhere. The Appellant also confirmed by email dated 1 June from the Appellant’s Attorneys that no Supplementary Notice of Appeal had been filed.

F.  Incomplete Record:

[16] The Appellant’s heads of argument did not deal with anything other than the incomplete record. The Appellant submitted that considering the incomplete record, the right to a fair trial has been infringed, that the decision of Court a quo should be set-aside and that a direction that the proceedings commence de novo before a new presiding officer be issued.

[17] At the hearing, counsel for both parties submitted that the matter should be heard on the record as it was. This meant that the Appellant effectively waived her argument in respect of the incomplete or defective record. This Court proceeded without the need to deal with the issue of the incomplete record.

[18] It needs to be mentioned that the Appellant does concede in the Supplementary Heads that this Court may proceed to hear the appeal notwithstanding the incomplete record.

G.  Issues to Be Determined:

      [19] The issue to be determined is whether or not the Court a quo correctly found that the Respondent discharged the onus of proof on a balance of probabilities that the Appellant knew or ought to have known that her conduct would cause harm to the Respondent or inspire the reasonable belief that harm would be caused to the Respondent, be it mental, psychological, physical or economic, and that her conduct would be reasonable in the circumstances. This will be done by way of an examination of the law applicable, facts, and the grounds of appeal raised by the Appellant, as well as the Respondent’s reply thereto.

H.  Appellant’s case:

      (a) In the Heads of argument

     [20] The Appellant mainly deals with the Court a quo’s failure and refusal to record proceedings; the importance of a correct and proper record of proceedings; the incomplete record, how all of the above may infringe the Appellant’s right to a fair trial, which includes right to an appeal or review by a higher Court and how in certain circumstances the appeal could still be adjudicated fairly notwithstanding an incomplete record.

      (b) In the Appellant’s Supplementary Heads of argument:

[21] The Appellant filed Supplementary Heads of argument dated 19 April 2021, which were done to supplement their Heads of argument dated 26 January 2020, which dealt with the incomplete Court Record and why the Order of the Court a quo should be set aside [019-4].

     (c) In the Appellant’s Conclusion [Supplementary Heads of argument]:

According to the Appellant, the Respondent failed to:

(i)             discharge the onus to prove that Appellant had engaged in conduct which constituted harassment. Based on that, it contended on behalf of the Appellant, that the Court a quo was not at liberty to grant a final order.

(ii)             to prove on a balance of probabilities that Appellant had

            engaged in conduct amounting to harassment.

(iii)          Relying on Naidoo v Pillay, supra,  to set out properly a case entitling her to the final protection order.

(iv)      the Court a quo erred in granting the final order. The order should be set aside,    alternatively, be remitted back to Court a quo for a hearing de novo.

 

I.  The Respondent’s case:

[22] The basis for this application are text messages and telephone calls made by Appellant to Respondent, which were sickening, insulting and aggressive and amounted to harassment.

[23] The Respondent relies further on section 9(2) of the Act, [see 010-3] para 4.3 of her Heads of argument, section 9 (5) of the Act, the definitions of “harassment” and “harm” in section 1 of the Act and the Court a quo’s reasons for judgment, which they submit duly ventilated the issues and dissected the evidence presented [010-5 to 010-8].

[24] The Respondent then submitted that the only aspect in dispute, which the Court a quo had to consider and pronounce upon, was whether or not the conduct of the Respondent, which conduct was admitted during the proceedings, was “conduct that the Respondent knows or ought to know causes harm or injuries in the reasonable belief that harm may be caused to the complainant” . The Respondent submits that Court a quo found that “it was based on the above-mentioned facts that the court comes to the conclusion that a good cause has been shown for the rule nisi to be confirmed as a final court order”

[25] The Respondent contends that the Court a quo made a factual finding that the conduct, which Appellant admitted, falls foursquarely within the definition of harassment as envisaged in s 1 of the Act.

J.  Arguments of the Parties:

(a)   Appellant’s arguments:

[26] With regards to the Order of the Court a quo, the Appellant argued that:

[26.1]  the application for protection order was made in December 2019, that   is, eleven (11) months after the last incident.

[26.2]  she was denied by the Court a quo the opportunity to file opposing papers but did respond to messages and put to the proof of the    allegations of harassment, but the Respondent did not do so. The Application was denied but not rebutted.

[26.3]  the Court below did not make findings that conduct of Appellant       constituted harassment.

[26.4]  the Court erred in making the finding that unpleasant messages are            conduct that causes harm and the Court (on its own version) did not       apply definition of harassment, therefore erroneously granted the final       order.

[26.5]  further, the Appellant was also denied the opportunity to respond to the      content of the alleged insulting messages –therefore the audi alteram partem rule was disregarded.

[27] The Appellant contends furthermore that the Respondent failed to discharge the onus of proving on balance of probabilities: that the Appellant harassed the Respondent; that no messages were attached to the affidavit, nor produced to the Court a quo. He concluded therefore that no objective proof existed upon which Magistrate was at liberty to grant final order. The last text message was sent in January 2018 – this indicates that there was no imminent harm upon which the Magistrate could have granted the final order [019-10].

[28] The Appellant contended further that no reasonable apprehension of harm existed upon which the Court below could have granted the final order [relying on Naidoo v Pillay 2017 JDR 0497 (KZP) at para 20]

[29] Regarding the exercise of a discretion, the Respondent submits that, because the Court a quo exercised its discretion, this Court was not at liberty to interfere with such discretion. According to the Appellant, this argument is not correct because the Act does not require any Court to exercise its discretion, because of section 9(4) of the Act. The Court only has discretion as far as it relates to subsection 9(5).

[30] It is the Appellant’s  argument that if the Court a quo did exercise its discretion in granting the final order, this Court should bear in mind that exercise of such discretion is not appealable. However, should an Appellant request a court of appeal to interfere with the discretion exercised, the Appellant must show that the Court of appeal may interfere with exercise of that discretion and must show that it should do so.

[31] The Appellant relies on National Conciliation for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others 2000(2) SA 1 (CC) at para 11, it was held that an appeal Court will only interfere with decision of Court a quo’s discretion if:

(b)   the Court a quo was influenced by wrong principles or misdirection of the facts.

(c)    if the Court a quo reached a decision, and the result thereof could not have been made by the Court properly directing itself to all relevant facts and principles. The Appellant’s view is that both criteria find application in this appeal.

(d)    Respondent’s Arguments:

[32] The Respondent deals with the requirements of an appeal and contends that in the absence of demonstrable and material misdirection by the trial court, the findings of fact are presumed to be correct and should only be disregarded by the Court on appeal if the evidence on record shows them to be clearly wrong. Relying on Pomario v S 1998 (3) ALL SA 463 (NC), para 6 Heads of argument; In regard to the latter, the Respondent concludes that it is evident from the above contention that there is no evidence on record which can show such a factual finding to be wrong, and therefore it cannot be disregarded.

[33] The Respondent submits further that, in the alternative to the foregoing , and if it is found that the Court a quo did exercise a discretion in finding that the conduct constitutes harassment , then the decision in Kekana v Society of Advocates SA [1998] ZASCA 54; [1998] 3 ALL SA 577 (A) applies, wherein it was held that “ where a court of appeal is called upon to interfere with the exercise of a discretion , that interference is limited to cases in which it is found that the trial court exercised its discretion capriciously or upon a wrong principle, or has not brought its unbiased judgment to bear on the question or has not acted for substantial reason’”

      [34] The Respondent submits that, in light of the arguments and submissions aforesaid, the appeal stands to be dismissed with costs, in that the conduct of the Appellant was at the time and still is common cause between the parties and the finding that the said conduct does constitute harassment cannot be interfered with, as same was made either based on facts or by exercising a discretion upon application of the correct principles.[pm1] 

K.  The Law:

      [35] The main principles consulted herein were the following:

              (a) the right to legal representation is a constitutional right in terms of the fair trial rights contained in section 35(3) of the Constitution 1996 of the Republic of South Africa Act 108 of 1996 (the Constitution) [Rambele v S; Msimango v S (CCT) 232/17; CCT 208/18 [2020] ZACC 22; 2020 (11) BCLR 1312 (CC) AT 46].

             (b) the utmost good faith must be shown, and sufficient disclosure of all relevant and material facts must be made to enable the opposing party to know exactly what case to meet on the return date and to afford the Court to arrive at a meaningful and rational decision. [Pashut v Klopper (A391/2018) [2019] 2 ZAGPHC 552 (19 September 2019) at para 21 and 29; NDPP v Basson [2002 (1) SA 419 (SCA) at para 21; Pountas Trustee v Lahanas (1924 WLD 64 at pg 67]. These principles were also confirmed in Recycling and Economic Development Initiative of SANPC v Minister of Environmental Affairs 2019 (3) SA 251 (SCA) at para 45 and Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348E-349B].

              (c) the definitions of harassment and harm contained in section 1 of the Act.

              “Harassment” is defined as:

        “Directly or indirectly engaging in conduct that the Respondent knows or ought to know:

(a)  causes harm or inspires the reasonable believe that harm may be caused to the complainant or a related person be unreasonably -

        (i) …..

        (ii) engaging in verbal, electronic, or any other communication aimed at the                      complainant or a related person, by any means, whether or not                                          communication ensues; or

        (iii) sending, delivering, or causing delivery of letters, telegrams, packages,                      facsimiles, electronic mail or other objects to the complainant or a                                   related person, or leaving them where they would be found by, given                         to, or brought to the attention of the complainant, or related person.

        (b) …..

        “Harm” is defined as: “Any mental, psychological, physical, or economic harm”

(d) The interpretation of the concepts of harassment and harm are discussed in Mnyandu v Padiachi (AR162/2014) [2016] ZAKZPHC 78; [2016] 4 ALC SA 110 (KZP); 2017 (1) SA (KZP) (01 August 2016) and Naidoo v Pillay 2017 JDR 0497 (KZP).

(e) the requirements of an appeal and when a Court of appeal may interfere with the judgment of the trial court. This will be examined with reference to Pomorio v S 1998 (3) ALL SA 463 (NC), Kekana v Socrety of Advocates SA [1998] ZASCA 54; (1998) 3 ALL SA 577 (A) and National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others 2000 (2) SA 1 (CC) at para 11.

(f) the concept of reasonable apprehension of harm will be briefly discussed within the requirements set in the Naidoo v Pillay, and Silberberg decisions, supra.

The above will now be considered against the facts in the matter and the submissions of the parties.

L.  Assessment:

[36] In the Appellant’s Notice of Appeal, the main categories of grounds listed are with regards to:

(a)  the procedure followed by the Court a quo in the Court a quo.

 

(b)  the Court a quo’s interpretation of harassment and his findings in relation thereto [paragraphs 1, 3, 6 and 7, Grounds of Appeal; pg 014-27 to 014-28].

[37] We will commence with grounds mentioned under category (a) above.

[37.1] The Magistrate erred in failing to afford the unrepresented Appellant an             opportunity to file opposing papers:

(a)  It is common cause that the Appellant did not file any opposing papers                   and was unrepresented in the Court below.

 

(b)  At para 19 of the Appellant’s counsel’s Heads of argument she raised the issue of the lack of opportunity to file opposing papers. The said point was also raised at para 22 of the Appellant’s Heads of argument, where the Appellant contended that she was denied the opportunity to respond to the alleged text messages, and as such, the audi alteram partem rule has been disregarded [pg 019-10]. It appears that no argument was raised in the Respondent’s papers regarding these latter allegations.

 

(c)  However, the Court a quo, in his reasons for judgment, stated that the Respondent was given an opportunity to rebut the evidence of the  Applicant or to challenge the rule nisi granted on 28 December 2018. He did not mention if this was done or not.

 

(d)  It is a pity that the Court a quo did not advise as to why he did not allow the Appellant the opportunity to file opposing papers or to legal representation. He did not explain any of these issues in his reasons for judgment.

[37.2] The Respondent did not show the utmost faith in their application for the                       interim interdict, which is a cause for the setting aside of the interim                                    Order:

(a)  The Applicant contends that the Respondent did not show the utmost faith in their application for the interim interdict, which is a cause for the setting aside for the interim order, and the Respondent did not disclose all relevant and material facts to enable the Court to arrive at a meaningful and rational decision.

(b)  It is trite that an Applicant must make out his/her case in the founding affidavit and annexures thereto and that full disclosure is required in ex parte applications. This means that information must be placed before the Presiding Judge/Magistrate which might have influenced the decision of the said Judge/Magistrate hearing the application, and the information contained         in the said papers should be clear and specific enough to enable the           opposing party to know exactly what case to meet on the return date [Pashat v Klopper, supra, at para 21 and 29]. It is therefore for the Court to determine if there was indeed non-disclosure or failure to mention the relevant facts in the founding affidavit, and if so, if such failure to disclose was material [Pashat, supra, at para 26].

 

(c)  In NDPP v Basson, supra, at para 21, it was held that “where an order is sought ex parte it is well established that the utmost good faith must be observed. All material facts must be disclosed which might influence a court in coming to its decision, and the withholding or suppression of material facts, by itself, entitles a court to set aside an order, even if the non-disclosure or suppression was not willful or mala fide” [ also refer to Pashut supra, at para 50]. In Pountas Trustee v Lahanas [1924 WLD 64 at p 67] it was decided that “an Applicant must stand or fall by his petition and the facts alleged therein and that although sometimes it is permissible to supplement the allegations contained in the petition, still the main foundation of the application is the allegation of facts which the Respondent is called upon to confirm or deny” [also refer to Pashut, supra, at para 49].

 

(d)  The Court, however, has a discretion to allow an order to stand, despite failure to disclose properly, but only if the discretion prevails when fairness to both parties is warranted. When failure to disclose is found, the Court would normally frown upon the lack of full disclosure and dismiss the relief sought [Pashut, supra, at para 51].

[37.3] The Respondent did not disclose all relevant and material facts to enable                     the Court to arrive at a meaningful and rational decision; and

[37.4] The Magistrate failed to take into account that the founding affidavit of the        Respondent was wholly insufficient for a finding of harassment on the part       of         the Appellant, and no further evidence was led at the hearing in relation     to the latter:

(a)  The principle of disclosure was already discussed at the hand of the case law mentioned herein above. These principles were also confirmed in Recycling and Economic Development Initiative of South Africa NPC, at para 45 and Schlesinger, supra, 348E – 349B.

 

(b)  It is the Appellant’s contention that the Court below did not consider that the contents of the Respondent’s founding affidavit was insufficient to find that the Appellant’s conduct amounted to harassment and    no further evidence to substantiate a finding of harassment was led at the hearing on 20 March 2019 [para 3, Notice of Appeal]. As indicated previously, the Respondent contended that the Appellant’s conduct, to which the Appellant has admitted, falls foursquarely within the definition of harassment [para 5, Respondent’s Heads of argument.

 

(c)  In the reasons for judgment the Court a quo does not deal fully with the conduct of the Appellant or provide reasons upon which he concluded that good cause was shown for the rule nisi to be confirmed. The Court a quo in the main found that it is not disputed that the Respondent texted the Applicant or that the parties exchanged unpleasant messages, and nor was it disputed that the parties telephoned each other because of the love triangle between the parties and a certain professional doctor.

 

(d)  Based on the aforesaid, the Court a quo concluded that good cause has been shown for the rule nisi to be confirmed.

 

(e)  According to the Respondent, in her Heads, the Court a quo duly ventilated the issues and dissected the evidence presented.

 

(f)    According to the Court below, the Appellant denied having insulted the Respondent, but admitted having contacted and texted the Respondent. The Appellant did not dispute that she contacted and texted the message to the Respondent but denied that she insulted and threatened the Respondent. The Appellant stated that she responded to the Respondent’s text messages because the Respondent texted her first. The Appellant put the Respondent to the proof of the alleged harassment. Further, the Appellant denied that she insulted or threatened the Respondent reasons for judgment.

 

(g)  There is no indication in the reasons for judgement or elsewhere that further evidence was led to justify a finding of harassment or harm. The Respondent’s contention that the Appellant admitted to harassment conduct is not confirmed in the said reasons for judgment as the Court a quo only stated that the Appellant admitted to the exchange of messages between the parties, which was found to be unpleasant.

 

(h)  The Respondent did, however, in her application for the protection order, indicate that the Appellant threatened to beat her (Respondent) up [para 4(C) of the application; This too was not covered in the said reasons for judgment. From the perspective of this Court, this allegation was at least clear and could constitute harassment activity if it complies with the Act and the case law, which will be discussed herein-below.

 

(i)    In our view, the Court a quo regrettably also confined himself to certain portions of the Act and failed to consider important parts thereof, for example the definition of “harm” (Section 1 of the Act) and any case law in relation to the matter. This Court is therefore unsure how the Court a quo arrived at the findings without the benefit of the said legal sources.

 

      [38] The Magistrate’s interpretation of Harassment and his findings in relation             thereto:

[38.1] the Magistrate erred in finding that Appellant committed harassment.

 

[38.2] the Magistrate erred in finding that Appellant was engaged in harassment                     activities whilst no evidence under oath or orally was produced by                                   Respondent substantiating his conclusion at hearing; and

[38.3] the Magistrate erred in finding that Appellant should not violate, insult,               threaten or contact the Respondent when the Respondent did not give           evidence in her application that the Appellant insulted or threatened the     Respondent.

(a)  The Appellant’s contentions stated above are very closely related and will be discussed together rather than separately. The Appellant challenges the findings of the Court below that her conduct constitute harassment whilst no evidence to support such finding was advanced, and further that the Court a quo erred in finding that she be prohibited to violate, insult, threaten or contact the Respondent.

 

(b)  In the application for the protection order [para 4 (c)], the Respondent mentions the details of all incidents of the harassment. These were outlined herein-above. In paragraph 7 of the same application, the Respondent requested the Court below to prohibit the Appellant from committing certain acts [para 7.1.3 thereof]. These acts were referred to in paragraph [3] hereof. Also, in terms of the final protection order [paragraph 3(1)(c) thereof], the Appellant was prohibited from committing the acts mentioned in said paragraph [3] above.

 

(c)  According to the Respondent, the Court a quo did consider all issues and evidence, and by admission of the Appellant during the proceedings, made a factual finding that the conduct of the Appellant falls within the definition of harassment and concluded that good cause has been shown for      the rule nisi to be confirmed as a final order. The Appellant contends that the Respondent failed to discharge the onus of proof of harassment as no evidence of such conduct was produced in the Court below, no objective proof existed upon which the final order could be granted, and no reasonable apprehension of harm or imminent harm upon which the court could grant the final order existed. [The full details of the Appellant’s opposition have been discussed above under the Appellant’s case and arguments].

 

(d)  It is common cause that the Appellant and the Respondent did exchange telephone calls and text messages. From the application for the protection order, they have been in contact on several occasions. This is also noted in the reasons for judgment and in the Heads of the Appellant and that of the Respondent

 

(e)   

(f)    The Respondent did not provide the Court a quo with sufficient details of the contents of the telephone calls and/or text messages. In her application she stated that the Appellant threatened and insulted her, without advising what the contents of the threats or insults were, other than the “beating up” part thereof.

 

(g)  The Court a quo did not provide a description or summary of what the contents of the text messages and/or telephone calls were. He only found them to be “unpleasant.”

 

(h)  Nowhere in the reasons for judgment did the Court a quo provide examples or explanation of how the alleged threats and insults constituted “harassment” that caused “harm.”

 

(i)    On top of the latter, the Court a quo failed to provide the opportunity for the Appellant to obtain legal representation and to file opposing papers. The opposing papers may have provided essential information or evidence (e.g., the actual alleged text messages or details of the texts and telephone calls) and confirmatory affidavits from the doctor (involved in the alleged love triangle), the Appellant’s sister Bonolo (who is alleged to have insulted the Respondent) and others. This could have assisted the Court below to be in a better position to ascertain the complete and true facts to make its decision. If the Respondent were allowed to file replying papers and replied to the opposing papers, the Respondent would have had the opportunity to respond to the Appellant’s opposing papers and possible confirmatory affidavits, all of which would have been to the benefit of the parties and the Court below in deciding the matter. The failure to do so is, in our view, prejudicial to the parties and the Court below itself.

[39] It appears that the application in the Court a quo was premised on section          1(a)(ii) and (iii) of the Act. The onus was therefore on the Respondent to prove on a balance of probabilities that the Appellant knew or ought to have known that by her conduct (which was detailed above), she was engaging in conduct which would cause harm to the Respondent or inspire the reasonable belief that harm would be caused to her, be it mental, psychological, physical or economic, and that her conduct would be reasonable in the circumstances.

     [40] In Mnyandu v Padayachi, supra, the Court held that the offence of harassment     is not merely constituted by a course of conduct that is oppressive and   unreasonable but that the consequences or effect of the conduct ought not to cause a mere degree of harm; the contemplated harm is serious fear, alarm, and distress. The legal test is always an objective one: the conduct is calculated in an objective sense to cause alarm or distress and is objectively judged to be oppressive and unacceptable [at para 65]. It was held that the conduct engaged in must necessarily either have a repetitive element which makes it oppressive and unreasonable, thereby tormenting or inculcating serious fear or distress in the victim. Alternatively, the conduct must be of such an overwhelming oppressive nature that a single act has the same consequence, as in the case of a single protracted incident when the victim is physically stalked [at para 68].

[41] From the evidence, the papers filed, and the submissions made, it is unclear how the conduct of the appellant was oppressive, tormenting, inculcating fear or distress in the victim, as the victim did not make mention of how the conduct (which she relies on in her application) made her feel or how she experienced the effects or consequences thereof. This aspect was also not addressed in the reasons for judgement. This Court is therefore unable to conclude that the conduct was of an overwhelmingly oppressive nature which caused serious fear, alarm, and distress, as contemplated in the decision, supra.

Further, the fact that the last incident of alleged harassment took place a year prior to the date of the application for a protection order, is in the view of this Court too far apart to constitute, objectively viewed, harassment or harm within the meaning of the Act and Mnyandu, supra. This Court is not convinced that the Respondent could feel oppressed, distressed, or fearful by the Appellant’s conduct eleven months after the last telephone call from the Appellant.

[42] Whilst this Court is of the view that the Appellants constant repetitive texting and calling may have been unreasonable in a sense, which has not been proven due to a lack of details of the contents of the text messages and the calls,          this Court is unable to find that the conduct in question, objectively viewed, was calculated to cause alarm and/or distress and is oppressive and unreasonable with the meaning of the Act and the said decision, supra.

[43] It is common cause that the parties exchanged text messages and telephone         calls with each other. The onus was of the Respondent to prove on a balance of probabilities that the Appellant knew or ought to have known that by sending text messages and making telephone calls, she was engaging in conduct which could cause harm to the Respondent be it mental, psychological, physical, or economic, and that her conduct was unreasonable in the circumstances.

[44] The Respondent, in her Heads of argument states that the text messages and phone calls made by Appellant to Respondent was sickening, insulting and aggressive in nature and amounted to harassment (fn 5, para C of Harassment Application, She does not state what was said or texted that was sickening; it only refers to insulting but does not explain what was said that makes the conduct insulting or aggressive. With regards to the “beat me up” part, this could be interpreted as aggressive if it complies with the test referred to in the said decision supra. In the view of this Court, this latter part (beat up) has been negated by the exceedingly long time that passed between this message and the institution of the application for the protection order, thereby eliminating that it could constitute imminent harm or harassment to the Respondent within the meaning of Mnyandu and Naidoo supra.

[45] The Court a quo erred in finding that there was a love triangle of sorts when the Respondent was simply a bitter ex-girlfriend intent on disrupting the Appellant’s relationship:

Regarding the above contention of the Appellant mentioned, the Appellant did not expand on the allegation of the love triangle or that an ex-girlfriend was intent on disrupting the relationship of the Appellant, nor did the Respondent make any input in relation thereto. In his reasons for judgement, the Court a quo made mention thereof, but did not provide much detail on the facts before him whilst he decided the matter. In any event, this Court is of the view that these contentions are not of pertinence to the deciding of this matter and dealing with it will not take the matter any further.

      [46] The following observations are made with regards to the matter:

 

(b) failure to allow parties to file opposing or replying papers:

It is equally unfortunate that the Court a quo did not allow the parties to file the relevant papers, especially where they request to do so. As pointed out before, by allowing the filing of the said papers, the Court below would have had the benefit of more complete facts and evidence to decide the matter on a more balanced and fair manner. The evidence of, for instance, the doctor and the sister of the Appellant (Bonolo) or any other witness, may have been to the advantage of the Court below in its adjudication.

(c) failure to allow legal representation:

It is trite that legal representation is a constitutional right, inherent in the right to a fair trial [section 35 (3)(f) of the Constitution 1996; Ramabele v S; Msimango v S, supra, at para 46]. There is also a duty upon Judicial officers to afford a person before them an opportunity to obtain legal representation [Ramabele supra at para 48]. It would have been in the interest of the Court below, the parties and that of justice, to allow any party such a right, particularly where it is so requested. It is a regrettable that this issue has not been addressed by Court a quo in his reasons for judgment or even mentioned therein.

(d) The details of the evidence led at the hearing on 20 March 2019:

The Respondent mentions that the Appellant admitted to certain conduct of harassment at the hearing of the protection order application [010-5]. However, nowhere in his reasons or elsewhere does the Court a quo inform us as to the details of such evidence or admissions. It is unfortunate that the Court below did not deem it necessary or important to provide details of the evidence led by each party and/or witnesses at the hearing in question. Such details would have been beneficial for the Court below, and for this Court, in the adjudication process.

(e) The Interim Order:

The Court a quo refers to an interim order granted on 28 December 2018 and the Final Protection Order. If regard is had to the application for the protection order on 28 December 2018, before Magistrate Mampshika, no such order was made if one refers to “Order” at paragraph 7.3 thereof. From the record, this is not the correct position. In the Notice to Show Cause, at paragraph 2 “Particulars of Application, it is stated that the application was considered but no interim protection order was issued. It is regrettable that the Court a quo did not take the trouble to examine the record thoroughly to ensure that the correct information was contained in his reasons for judgement.

M. Ruling:

      [47] The following conclusions are made considering the above:

          Utmost good faith:

(a)  In the view of this Court the Respondent did not show the utmost good faith in her application. Her founding papers were insufficient to sustain a finding of harassment and harm as discussed in paragraphs 37.2 and 37.4 above [refer to the Basson and Lahanas decisions supra].

 

(b)  the failure of the Respondent to provide the actual texts messages or transcripts thereof and the content of the telephone calls to the Court below is a further indication of the insufficient nature of the evidence and information that was included into the founding papers and before the Court in general. In the view of this Court, this failure is a material non-disclosure of facts as envisaged in the Basson decision supra. The Court a quo could not, in our view, have made a proper finding without having had access or regard to the relevant texts and the contents of the telephone calls.

 

(c)  the Respondent did not provide sufficient evidence of how the harassment or harm was done to her within the meaning of the Act and the Mnyandu decision, supra, and nowhere in the reasons for judgment did the Court below advise how the conduct of the Appellant caused harm to the Respondent. The lack of this information and evidence flies in the face of the disclosure requirements mentioned in the above decisions, supra.

Insufficient information/evidence:

This Court already indicated that the Respondent did not provide sufficient information or evidence in the founding papers or otherwise. As stated above, the non-disclosure of material facts, such as the way the harassment took place and the consequences thereof, are not in line with the provisions of the Act and the case law referred to above.

 Acts of harassment or harm:

It was already indicated that this Court could not find sufficient evidence on how the conduct of the Appellant constituted harassment or harm within the requirements of the above-mentioned decisions, supra. This Court is therefore unable to conclude that the Respondent has proven on a balance of probabilities that the Appellant was engaged in harassment activities that caused harm to the Respondent. This Court is not convinced the Appellant’s conduct was objectively oppressive or had the requisite gravity to constitute harassment or harm as envisaged in Mnyandu supra.

 Reasonable apprehension of harm:

This Court agree with the assertion of the Appellant that no reasonable      apprehension of harm, within the meaning of Naidoo supra, could be detected from the conduct of the Appellant. In the view of this Court the Respondent did not objectively show that her apprehensions were well grounded. There were not sufficient facts grounding her apprehension that were provided in her application, to enable this Court to judge for itself whether the facts were indeed well grounded.

 Interference with judgment a quo:

Considering the above, it is this Court’s view that the Court a quo did not properly direct himself to all the relevant facts and legal principles required in terms of the National Coalition decision supra. Accordingly, this Court is entitled to interfere with the judgement of the Court below, as envisaged in the Pomario, National Coalition and Kekana decisions, supra.

 Exercise of a discretion:

In light of the aforegoing, the Court a quo misdirected himself (as explained above), which has been clearly shown by the Appellant, and who requested this Court to interfere with the order of the Court below through this appeal [019 – 11 to 019 – 12], this Court is not prepared to exercise its  to comply with the disclosure requirements envisaged in  Pashut, supra.

    [48] The conclusions drawn by this Court in relation to utmost good faith and full                           and sufficient disclosure of material facts, as discussed above, on its own, is in the view of this Court, dispositive of the appeal. Further, this Court indicated above why it could not concur with the Court below that the requirements of harassment and harm have been satisfied. The Respondent did not manage to prove on a balance of probabilities that the Appellant’s conduct caused harm and was unreasonable within the meaning of the Act and the Mnyandu decision, supra.

[49] This Court is further, in of the view of the evidence and the record before it, not   prepared to exercise its discretion to allow the order of the Court below to stand.

[50] This Court is not convinced that the Appellant’s conduct was           objectively oppressive or had the requisite gravity to constitute harassment or    harm as envisaged in the Act or in Mnyandu, supra.

      [51] Accordingly the appeal should succeed.

N. Costs:

[52] The general rule is that costs follow the result unless there are good grounds      to deviate from this principle [ Myers v Abrahmson 1951 (3) SA 348 (C) at          455; Markit Systems (Pty) Ltd v Fulcrum Group (Pty) Ltd (39734/2018) [2021]   ZAGPJHC 36 (08 April 2021) at para 53]. Due to the acrimonious nature of the          litigation, the difficult relationship between the parties and the facts of this    matter, it is the Court’s view that it would not be appropriate to grant costs in the matter. This Court is therefore not prepared to exercise its discretion to award costs in favour of any of the parties.

O. Order:

[53] In the result, the following order is made:

1.    Condonation for the late filing of the Appellant’s Heads of argument (dated 17 January 2020) and Supplementary Heads of argument is granted, no cost order in relation thereto is awarded.

2.    The appeal is upheld.

3.    The judgment and order of the Court a quo of 20 March 2019 are hereby set aside and replaced with the following order:

“The application is hereby dismissed”

4.    Each party shall pay her own costs.

 

 

                         

 

 

 

 

 

 

                                                                                   

                 B CEYLON

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

                               GAUTENG DIVISION,

                               PRETORIA

 

 

 

 

 

                             

I agree and it is ordered:                                                                                                    P MABUSE

                    JUDGE OF THE HIGH COURT

                                                                                    OF SOUTH AFRICA,

                                              GAUTENG DIVISION,

                                    PRETORIA

 

Appearances:

For the Appellant                  : Adv SN Davis

Instructed by                         : Friedland Hart Solomon & Nicholson

                                              Attorneys

For first Respondent            : Adv DA De Kock

Instructed by                         : Langenhoven Pistorius Modihapula

                                               Attorneys

Date of hearing                    : 11 May 2021

Date of Judgment                : 10 November 2021

---