Tembe v Tember (EL1207/2021) [2021] ZAECBHC 15 (17 September 2021)

Tembe v Tember (EL1207/2021) [2021] ZAECBHC 15 (17 September 2021)

The court held that, at common law and under the Superior Courts Act, the noting of an appeal suspends the execution of the order unless exceptional circumstances are shown. The respondent failed to demonstrate exceptional circumstances justifying the continued operation of the protection order pending appeal. There was no evidence that the applicant posed a danger to the respondent or the children. The court found that the applicant should be allowed access to the jointly owned property under specified conditions, while the remainder of the protection order (prohibiting threats, insults, intimidation, sharing personal information, and defamation) remains in force. The respondent's...

Citation
[2021] ZAECBHC 15
Parties
Applicant: Vukile Viwe Tembe; Respondent: Zingisa Tembe
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
17 September 2021
Case Number
EL1207/2021
Procedural Posture
Urgent Application / Application for Suspension of Magistrate's Court Protection Order and Interdict; Counter Application for Execution Pending Appeal
Outcome
Application for suspension of the Magistrate's protection order granted in part; applicant allowed access to property under specified conditions; remainder of protection order remains in force; no order as to costs.
Judges
N G Beshe
Legal Topics
Domestic Violence Act, Protection Order, Suspension of Execution, Interdict, Access to Property, Parental Rights
Civil Procedure Family and Children Domestic Violence Act Protection Order Suspension of Execution Interdict Access to Property Parental Rights

Case Brief

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Parties

Vukile Viwe Tembe

Applicant

Zingisa Tembe

Respondent

Procedural Posture

Urgent Application / Application for Suspension of Magistrate's Court Protection Order and Interdict; Counter Application for Execution Pending Appeal

Legal Issues

  1. 1 Whether the Magistrate's Court protection order should be suspended pending appeal.
  2. 2 Whether the applicant should be granted access to the jointly owned property.
  3. 3 Whether exceptional circumstances exist to justify execution of the protection order pending appeal.

Ratio Decidendi

The court held that, at common law and under the Superior Courts Act, the noting of an appeal suspends the execution of the order unless exceptional circumstances are shown. The respondent failed to demonstrate exceptional circumstances justifying the continued operation of the protection order pending appeal. There was no evidence that the applicant posed a danger to the respondent or the children. The court found that the applicant should be allowed access to the jointly owned property under specified conditions, while the remainder of the protection order (prohibiting threats, insults, intimidation, sharing personal information, and defamation) remains in force. The respondent's...

Court Disposition

Application for suspension of the Magistrate's protection order granted in part; applicant allowed access to property under specified conditions; remainder of protection order remains in force; no order as to costs.

Orders

  • The applicant is not to threaten, insult, intimidate, defame, or share the respondent's personal information.
  • The applicant is allowed back into the property, using the secondary bedroom and common bathroom; respondent uses the main bedroom and ensuite; applicant not to enter main bedroom or ensuite.