P.S.H V P.H (2138/2012) [2013] ZAECGHC 90 (23 August 2013)

P.S.H V P.H (2138/2012) [2013] ZAECGHC 90 (23 August 2013)

The High Court found that the second respondent committed a gross irregularity by refusing to allow the applicant to adduce oral evidence and by failing to provide a fair hearing as required by section 6(2) of the Domestic Violence Act. The mere opportunity to object to the confirmation of the order was not a substitute for the right to testify and answer allegations. The second respondent further erred by relying on the first respondent's demeanor as evidence and by displaying bias against the applicant. These procedural defects constituted a fundamental violation of the applicant's right to be heard. Consequently, the decision confirming the interim protection order was reviewed and set...

Citation
[2013] ZAECGHC 90
Parties
Applicant: P S H; Respondent: P H; Respondent: THE ADDITIONAL MAGISTRATE EAST LONDON MR GOOSEN
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
23 August 2013
Case Number
2138/2012
Procedural Posture
Review Application / High Court Review of Magistrate's Confirmation of Interim Protection Order
Outcome
Application for review succeeded; decision confirming interim protection order set aside; interim order extended pending rehearing before another magistrate; costs awarded to applicant.
Judges
J M Roberson, C M Plasket
Legal Topics
Domestic Violence Act, Procedural Fairness, Right to Be Heard, Review of Magistrate Decision, Interim Protection Order, Child Contact Arrangements
Family and Children Civil Procedure Administrative Law Domestic Violence Act Procedural Fairness Right to Be Heard Review of Magistrate Decision Interim Protection Order +1 more

Case Brief

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Parties

P S H

Applicant

P H

Respondent

THE ADDITIONAL MAGISTRATE EAST LONDON MR GOOSEN

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Confirmation of Interim Protection Order

Legal Issues

  1. 1 Whether the second respondent committed a gross irregularity by refusing the applicant the opportunity to adduce oral evidence.
  2. 2 Whether the proceedings confirming the interim protection order were procedurally fair.
  3. 3 Whether the applicant's right to be heard was violated.

Ratio Decidendi

The High Court found that the second respondent committed a gross irregularity by refusing to allow the applicant to adduce oral evidence and by failing to provide a fair hearing as required by section 6(2) of the Domestic Violence Act. The mere opportunity to object to the confirmation of the order was not a substitute for the right to testify and answer allegations. The second respondent further erred by relying on the first respondent's demeanor as evidence and by displaying bias against the applicant. These procedural defects constituted a fundamental violation of the applicant's right to be heard. Consequently, the decision confirming the interim protection order was reviewed and set...

Court Disposition

Application for review succeeded; decision confirming interim protection order set aside; interim order extended pending rehearing before another magistrate; costs awarded to applicant.

Orders

  • The decision of the second respondent of 16 May 2012 confirming the interim protection order granted on 10 May 2012 in favour of the first respondent against the applicant is reviewed and set aside.
  • The interim protection order is extended until proceedings in terms of section 6 of the Domestic Violence Act 116 of 1998 are re-enrolled by either party on notice to the other party.