Chilowore v Menyaka; Phiri v Sandala; Terbalanche v Nadine; Bester v Kemp; Makgareetsa v Molapisi; Kolobi v Seitebaleng (63/19; 64/19; 67/19; 70/19; 71/19; 72/19) [2019] ZAGPJHC 198; 2021 (4) SA 510 (GJ) (11 April 2019)

Chilowore v Menyaka; Phiri v Sandala; Terbalanche v Nadine; Bester v Kemp; Makgareetsa v Molapisi; Kolobi v Seitebaleng (63/19; 64/19; 67/19; 70/19; 71/19; 72/19) [2019] ZAGPJHC 198; 2021 (4) SA 510 (GJ) (11 April 2019)

The High Court found that the magistrate committed gross irregularities by summarily dismissing the harassment protection applications without issuing notices to show cause or calling for additional evidence, as required by the Protection from Harassment Act. The magistrate's reliance on the availability of criminal remedies and the characterization of incidents as once-off did not justify dismissal of the civil applications. The discretion was not exercised judiciously, and the audi alteram partem principle was not observed. The orders of dismissal were inconsistent with the Act and the general principles of procedural fairness.

Citation
[2019] ZAGPJHC 198
Parties
Applicant: Julian Netsai Chilowore; Respondent: Amukelani Menyaka; Applicant: Matlhogonolo Evelyn Phiri; Respondent: Maria Sandala; Applicant: Suzan Phiri Terbalanche; Respondent: Nadine; Applicant: Sarel Bester; Respondent: Marie M Kemp; Applicant: Julia Makgareetsa; Respondent: Theresia Molapisi; Applicant: Clinton Joseph Kolobi; Respondent: Seitebaleng
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 April 2019
Case Number
63/19; 64/19; 67/19; 70/19; 71/19; 72/19
Procedural Posture
Review Application / High Court Review of Magistrate's Dismissal of Harassment Protection Applications
Outcome
Magistrate's orders of dismissal in all six matters set aside; applications to be reconsidered de novo before another magistrate.
Judges
T P Mudau, M A Makume
Legal Topics
Protection From Harassment Act, Review of Magistrates Court, Audi Alteram Partem, Interim Protection Order, Gross Irregularity
Civil Procedure Family and Children Protection From Harassment Act Review of Magistrates Court Audi Alteram Partem Interim Protection Order Gross Irregularity

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Parties

Julian Netsai Chilowore

Applicant

Amukelani Menyaka

Respondent

Matlhogonolo Evelyn Phiri

Applicant

Maria Sandala

Respondent

Suzan Phiri Terbalanche

Applicant

Nadine

Respondent

Sarel Bester

Applicant

Marie M Kemp

Respondent

Julia Makgareetsa

Applicant

Theresia Molapisi

Respondent

Clinton Joseph Kolobi

Applicant

Seitebaleng

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Dismissal of Harassment Protection Applications

Legal Issues

  1. 1 Whether the magistrate's summary dismissal of harassment protection applications without issuing notice to show cause or calling for additional evidence constituted gross irregularity.
  2. 2 Whether the magistrate failed to exercise discretion judiciously in accordance with the Protection from Harassment Act 17 of 2011.
  3. 3 Whether the applicants' option to lay criminal charges justified dismissal of their civil harassment applications.

Ratio Decidendi

The High Court found that the magistrate committed gross irregularities by summarily dismissing the harassment protection applications without issuing notices to show cause or calling for additional evidence, as required by the Protection from Harassment Act. The magistrate's reliance on the availability of criminal remedies and the characterization of incidents as once-off did not justify dismissal of the civil applications. The discretion was not exercised judiciously, and the audi alteram partem principle was not observed. The orders of dismissal were inconsistent with the Act and the general principles of procedural fairness.

Court Disposition

Magistrate's orders of dismissal in all six matters set aside; applications to be reconsidered de novo before another magistrate.

Orders

  • The orders by the magistrate in all six matters are set aside.
  • The applications are to be considered de novo before another magistrate.