C.P.S v A.S (A3069/2021) [2023] ZAGPJHC 298 (28 March 2023)

C.P.S v A.S (A3069/2021) [2023] ZAGPJHC 298 (28 March 2023)

The court found that the magistrate erred by applying the incorrect standard of proof, requiring only a prima facie case rather than proof on a balance of probabilities. The respondent's credibility was undermined by contradictions and negative findings on other allegations, and her ability to quote phrases verbatim did not, in itself, support her version given the credibility concerns. The appellant's denial, though bald, was sufficient to create a genuine dispute of fact in the circumstances. The final protection order relating to verbal abuse was set aside. Regarding access to the residence, the court held that the appellant should not be barred from his property where his children...

Citation
[2023] ZAGPJHC 298
Parties
Appellant: C.P.S; Respondent: A.S
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 March 2023
Case Number
A3069/2021
Procedural Posture
Civil Appeal / Appeal Against Final Protection Order Under Domestic Violence Act
Outcome
Appeal upheld in part; final protection order set aside except for amended restriction on entry to residence.
Judges
Strydom, Leech
Legal Topics
Domestic Violence Act, Protection Order, Verbal Abuse, Burden of Proof, Credibility Assessment
Family and Children Civil Procedure Domestic Violence Act Protection Order Verbal Abuse Burden of Proof Credibility Assessment

Case Brief

Summary, issues, holding and outcome

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Parties

C.P.S

Appellant

A.S

Respondent

Procedural Posture

Civil Appeal / Appeal Against Final Protection Order Under Domestic Violence Act

Legal Issues

  1. 1 Whether the respondent proved on a balance of probabilities that the appellant engaged in verbal abuse constituting domestic violence.
  2. 2 Whether the appellant should be prohibited from entering the residence without prior arrangement or notice.
  3. 3 Whether the magistrate applied the correct standard of proof in confirming the interim protection order.

Ratio Decidendi

The court found that the magistrate erred by applying the incorrect standard of proof, requiring only a prima facie case rather than proof on a balance of probabilities. The respondent's credibility was undermined by contradictions and negative findings on other allegations, and her ability to quote phrases verbatim did not, in itself, support her version given the credibility concerns. The appellant's denial, though bald, was sufficient to create a genuine dispute of fact in the circumstances. The final protection order relating to verbal abuse was set aside. Regarding access to the residence, the court held that the appellant should not be barred from his property where his children...

Court Disposition

Appeal upheld in part; final protection order set aside except for amended restriction on entry to residence.

Orders

  • The final protection order is set aside except for paragraph 3.1.2.3 of the interim order, which is made final as follows: The respondent is not to enter the residence at 62 [...] without prior notice given to the applicant.
  • No order as to costs.