Du Toit and Another v Jacobs (A121/22) [2022] ZAWCHC 243 (28 November 2022)

Du Toit and Another v Jacobs (A121/22) [2022] ZAWCHC 243 (28 November 2022)

The court found that the conduct complained of—namely, the operation of a manure transport business resulting in noise, smells, flies, and other nuisances—did not meet the definition of harassment under the Protection from Harassment Act. The Act is intended to protect individuals from abusive behaviour intentionally directed at them, not from general nuisance or business activities. The evidence did not establish that the appellants' actions were willfully aimed at causing harm or fear to the respondent. The magistrate's order was unclear and overbroad, prohibiting conduct not contemplated by the Act. The only complaint with potential merit was the alleged threat to kill, but the...

Citation
[2022] ZAWCHC 243
Parties
Appellant: Berto Du Toit; Appellant: Sonja Du Toit; Respondent: Kenneth Jacobs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 November 2022
Case Number
A121/22
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Decision on Harassment Protection Order
Outcome
Appeal partially upheld; magistrate's protection order set aside and replaced with dismissal of the application. No order as to costs.
Judges
DM Thulare, PL Goliath
Legal Topics
Protection From Harassment Act, Definition of Harassment, Neighbour Disputes, Zoning and Land Use, Municipal by Laws
Civil Procedure Family and Children Protection From Harassment Act Definition of Harassment Neighbour Disputes Zoning and Land Use Municipal by Laws

Case Brief

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Parties

Berto Du Toit

Appellant

Sonja Du Toit

Appellant

Kenneth Jacobs

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Decision on Harassment Protection Order

Legal Issues

  1. 1 Does the conduct of the appellants constitute harassment as defined in the Protection from Harassment Act 17 of 2011?
  2. 2 Was the magistrate correct in granting a protection order against the appellants and dismissing the second appellant's complaint?
  3. 3 Is the operation of a business causing nuisance sufficient to meet the threshold of harassment under the Act?

Ratio Decidendi

The court found that the conduct complained of—namely, the operation of a manure transport business resulting in noise, smells, flies, and other nuisances—did not meet the definition of harassment under the Protection from Harassment Act. The Act is intended to protect individuals from abusive behaviour intentionally directed at them, not from general nuisance or business activities. The evidence did not establish that the appellants' actions were willfully aimed at causing harm or fear to the respondent. The magistrate's order was unclear and overbroad, prohibiting conduct not contemplated by the Act. The only complaint with potential merit was the alleged threat to kill, but the...

Court Disposition

Appeal partially upheld; magistrate's protection order set aside and replaced with dismissal of the application. No order as to costs.

Orders

  • The order granted by the Magistrate under case number H98/2020 is set aside and replaced with dismissal of the application.
  • The appeal against the protection order under case number H97/2020 is dismissed.