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South Africa Judgment

South Gauteng High Court, Johannesburg

Rice v Dare (A3130/2018) [2019] ZAGPJHC 63 (5 March 2019)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The appeal succeeded because the magistrate erred in dismissing the application for a protection order without hearing oral evidence. The disputes of fact between the parties were extensive and could not be resolved on affidavit alone. The court held that, in such circumstances, the matter should be remitted to a different magistrate for the hearing of oral evidence to ensure a just decision.

Court disposition

Appeal upheld; magistrate's dismissal set aside; matter remitted for oral evidence before a different magistrate.

Orders

  • The appeal succeeds with costs.
  • The dismissal of the application is set aside.
  • The matter is remitted for the hearing of oral evidence of the parties and any other person, before a different magistrate.

02

Material facts

Parties

Patricia Meegan Rice

Appellant Counsel: S S Cohen

Levi Dare

Respondent

03

Procedural history

  1. Posture

    Civil Appeal / Appeal From Magistrate's Court Dismissal of Protection Order Application

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant argued that the magistrate failed to properly consider the evidence, including affidavits and confirmatory affidavits, and that the disputes of fact regarding harassment required oral evidence for proper resolution. The appellant contended that the conduct alleged, including swearing, stalking, dog-kicking, loud noise, and threats, constituted harassment under the Act.
Respondent
The respondent provided detailed context and defences in his answering affidavit, supported by confirmatory affidavits from witnesses. He denied that his conduct amounted to harassment and argued that the evidence presented by the appellant was insufficient to justify a protection order.

05

Court’s reasoning

  1. 01

    Protection from Harassment Act 17 of 2011, section 3(1)

    A court considering an application for an interim protection order may consider evidence additional to affidavits, including oral evidence.

  2. 02

    Protection from Harassment Act 17 of 2011, section 7(1)

    A court may, at any stage, subpoena any witness if the evidence of that person appears essential to the just decision of the case.

06

Ratio, limits and disposition

Ratio decidendi

The appeal succeeded because the magistrate erred in dismissing the application for a protection order without hearing oral evidence. The disputes of fact between the parties were extensive and could not be resolved on affidavit alone. The court held that, in such circumstances, the matter should be remitted to a different magistrate for the hearing of oral evidence to ensure a just decision.

Obiter and limits

  • The level of animosity and the nature of the allegations between the parties give cause for concern and highlight the need for oral evidence.
  • Much of the replying affidavit was not answered by the respondent, further complicating the factual disputes.

Court disposition

Appeal upheld; magistrate's dismissal set aside; matter remitted for oral evidence before a different magistrate.

  • The appeal succeeds with costs.
  • The dismissal of the application is set aside.
  • The matter is remitted for the hearing of oral evidence of the parties and any other person, before a different magistrate.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment reading view

Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2019] ZAGPJHC 63

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG

DIVISION

LOCAL SEAT, JOHANNESBURG

CASE NO: A 3130/2018

Magistrates’ Court Case Number 224/2018

DATE: 5 MARCH 2019

In the matter between:

PATRICIA

MEEGAN RICE

APPELLANT and

LEVI

DARE

RESPONDENT

JUDGMENT

WRIGHT J

1. The appellant is a woman who lives in a unit in a gated complex. The respondent, a man is her neighbour. On 7 March 2018 the applicant sought a protection order against the respondent in the magistrates’ court under section 2(1) of the Protection from Harassment Act 17 of 2011. The appellant filled in a standard form and submitted an affidavit. Under section 3(4), instead of an interim order being issued, an order was granted calling upon the respondent to show cause on a return date why a protection order should not be issued. That order was served and in due course the respondent filed an answering affidavit. Thereafter, the appellant filed a replying affidavit. At the hearing the magistrate dismissed the application. The appellant now seeks on appeal to set aside the magistrate’s order. In short, the magistrate held that the limited conduct proved by the applicant did not amount to harassment.

2. The applicant’s case, as originally set out in the form and in the founding affidavit is relatively terse. The answering affidavit is in some detail and provides context, defences and confirmatory affidavits by witnesses. The replying affidavit is far more detailed than the founding affidavit and includes confirmatory affidavits by witnesses for the applicant. There is much in the replying affidavit that the respondent has not been able to answer.

3. The level of animosity between the parties, read with the allegations and counter -allegations gives cause for concern. In my view, the disputes of fact are so far-reaching that it would be unwise to attempt to resolve the matter on affidavit. These disputes include allegations of swearing, stalking, dog-kicking, loud noise and threats to kill a person.

4. Under section 3(1), a court considering an application for an interim protection order may consider evidence additional to affidavits including oral evidence.

5. Under section 7(1) a court may, at any stage cause to be subpoenaed any witness if the evidence of that person appears to the court to be essential to the just decision of the case.

6. In my view, the appeal should succeed to the extent that the magistrate’s dismissal of the application should be set aside but that the matter be remitted to a different magistrate for the hearing of oral evidence.

ORDER:

1. The appeal succeeds with costs.

2. The dismissal of the application is set aside.

3. The matter is remitted for the hearing of oral evidence of the parties and any other person, before a different magistrate.

WANLESS

AJ

I agree / disagree

Appearances: On behalf of the Appellant: Adv S S Cohen Instructed by: Jan Bezuidenhout Attorneys 011 692 4025 On behalf of the Respondent: ? Instructed by: Darryl Ackerman Attorneys 011 268 2593

Date of Hearing: 5 March 2019 Date of Judgment: 5 March 2019

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Protection from Harassment Act 17 of 2011

Legislation

Legislation referenced in the available case record.

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