A.M v S.D (AR 220/2022) [2023] ZAKZPHC 48; 2023 (2) SACR 296 (KZP) (12 May 2023)

A.M v S.D (AR 220/2022) [2023] ZAKZPHC 48; 2023 (2) SACR 296 (KZP) (12 May 2023)

The court found that only one of the four incidents alleged by the respondent was notionally actionable under the Protection from Harassment Act, as the first incident predated the Act's commencement and the third and fourth incidents were not sufficiently oppressive or repetitive. The second incident, while actionable, did not meet the threshold of overwhelming oppressiveness required for a single act to justify a protection order. The evidence did not establish a course of conduct with a repetitive element, nor did it show harassment of related persons. The magistrate's order was therefore incorrect and could not stand. The appeal was upheld and the protection order set aside.

Citation
[2023] ZAKZPHC 48
Parties
Appellant: A.M; Respondent: S.D
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
12 May 2023
Case Number
AR 220/2022
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court
Outcome
Appeal upheld; protection order set aside.
Judges
Mossop, Madondo
Legal Topics
Protection From Harassment Act, Harassment, Protection Order, Retrospective Application, Course of Conduct
Family and Children Protection From Harassment Act Harassment Protection Order Retrospective Application Course of Conduct

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

A.M

Appellant

S.D

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court

Legal Issues

  1. 1 Whether the conduct complained of by the respondent constituted actionable harassment under the Protection from Harassment Act 17 of 2011.
  2. 2 Whether the magistrate erred in granting a protection order based on incidents, some of which predated the commencement of the Act.
  3. 3 Whether the conduct alleged was sufficiently repetitive or overwhelmingly oppressive to justify a protection order.

Ratio Decidendi

The court found that only one of the four incidents alleged by the respondent was notionally actionable under the Protection from Harassment Act, as the first incident predated the Act's commencement and the third and fourth incidents were not sufficiently oppressive or repetitive. The second incident, while actionable, did not meet the threshold of overwhelming oppressiveness required for a single act to justify a protection order. The evidence did not establish a course of conduct with a repetitive element, nor did it show harassment of related persons. The magistrate's order was therefore incorrect and could not stand. The appeal was upheld and the protection order set aside.

Court Disposition

Appeal upheld; protection order set aside.

Orders

  • The appeal is upheld.
  • The order granted on 30 March 2022 is set aside and replaced with: 'The application for a protection order in terms of the provisions of s 9(4) of the Protection from Harassment Act 17 of 2011 is dismissed.'