Fisher v Sibisi (A3111/2019) [2020] ZAGPJHC 261 (20 October 2020)

Fisher v Sibisi (A3111/2019) [2020] ZAGPJHC 261 (20 October 2020)

The court found that the appellant's conduct in serving a letter of demand and being accompanied by police was not unreasonable, given the context of previous alleged assault and the need to prove service. The inclusion of a police stamp and signature section in the letter did not cause harm or inspire a reasonable belief of harm. The respondent failed to discharge the onus of proving harassment on a balance of probabilities. The alleged email sent by the appellant did not rise to the level of objectively oppressive or distressing conduct required by the Act. The Magistrate's factual error regarding a civil judgment and the basis for the protection order was fundamental and warranted...

Citation
[2020] ZAGPJHC 261
Parties
Appellant: Mary Fisher; Respondent: Thandekile Nozipho Sibisi
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 October 2020
Case Number
A3111/2019
Procedural Posture
Civil Appeal / Appeal Against Protection Order Granted by Magistrate's Court
Outcome
Appeal upheld; protection order set aside.
Judges
JT BoltAR, Vally
Legal Topics
Protection From Harassment Act, Harassment Definition, Onus of Proof, Reasonableness of Conduct
Civil Procedure Family and Children Protection From Harassment Act Harassment Definition Onus of Proof Reasonableness of Conduct

Case Brief

Summary, issues, holding and outcome

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Parties

Mary Fisher

Appellant

Thandekile Nozipho Sibisi

Respondent

Procedural Posture

Civil Appeal / Appeal Against Protection Order Granted by Magistrate's Court

Legal Issues

  1. 1 Whether the appellant's conduct constituted harassment as defined in the Protection from Harassment Act.
  2. 2 Whether the protection order was properly granted based on the evidence before the Magistrate.
  3. 3 Whether the appellant's actions were unreasonable and inspired a reasonable belief of harm to the respondent.

Ratio Decidendi

The court found that the appellant's conduct in serving a letter of demand and being accompanied by police was not unreasonable, given the context of previous alleged assault and the need to prove service. The inclusion of a police stamp and signature section in the letter did not cause harm or inspire a reasonable belief of harm. The respondent failed to discharge the onus of proving harassment on a balance of probabilities. The alleged email sent by the appellant did not rise to the level of objectively oppressive or distressing conduct required by the Act. The Magistrate's factual error regarding a civil judgment and the basis for the protection order was fundamental and warranted...

Court Disposition

Appeal upheld; protection order set aside.

Orders

  • The protection order issued on 23 September 2019 is set aside.
  • There is no order as to costs.