By Leon Ernest Rousseau

The Domestic Violence Act 116 of 1998 and the Protection from Harassment Act 17 of 2011 each essentially, in respect of harassment, require that the conduct complained of should be of a repetitive nature. Unless and as submitted in the alternative in Mnyandu v Padayachi 2017 (1) SA 151 (KZP) at para 68, the singular conduct is of such an overwhelmingly oppressive nature that it has the same consequences, as in the case of a single protracted incident when the victim is physically stalked.

The element of repetition or course of conduct, in its critical well-reasoned analysis of the Protection from Harassment Act, was confirmed in the Mnyandu case. In Silberberg v Silberberg, Silberberg v Silberberg and Another (WCC) (unreported case no A603/2007, 4581/2008, 29-1-2013) (Cloete AJ), the court also highlighted the various provisions of the Domestic Violence Act emphasising that there needs to be a pattern of past conduct or repetition in order to conclude that there is a reasonable apprehension of such conduct occurring in the future.

It must be remembered that both acts serve to ‘interdict’ behaviour and not punish past conduct, regardless of how unattractive the behaviour may seem. The conduct, viewed reasonably, must not merely be unattractive or even unreasonable, but rather it needs to be oppressive and unacceptable in which the harm is serious enough to cause fear, alarm or distress (see the Mnyandu case).

Within the context of the submission that its purpose is not to punish, but rather to protect against the potential of future harm, I refer to S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC) at para 17 wherein the court held: ‘The principal objective of granting an interdict is not to solve domestic problems or impose punishments, but to provide a breathing-space to enable solutions to be found; not to punish past misdeeds, but to prevent future misconduct.’

Determining whether the past conduct complained of is able to lead the trier of the facts and evidence to the conclusion on a balance of probabilities that a reasonable apprehension exists, is at times a vexing question, which confronts the courts on a regular basis.

The purpose of this article is not intended to explore those obvious cases of domestic violence or harassment, but rather to explore those borderline cases against the cases mentioned.

The gap between over-caution and being dismissive is at times narrow, as both have the potential to impugn rights and it is not uncommon. It is also not uncommon to encounter instances where ulterior motives exist.

However, it remains necessary to carefully consider each matter on its own merits and within the context of the particular complainant’s circumstances and experience in order to ensure that the wheat is separated from the chaff.

It is necessary, to consider the context within which the incident(s) occurred, the nature of the conduct, its impact on the complainant within their circumstances and subjective experience and then to determine within that particular matrix the possibility of it being repeated.

Socio-economic factors can also play a role. To this end and given the lack of access to adequate or suitable housing, parties are more often than not forced into such close proximity to each other that conflict inevitably arises. In this context a certain measure of tolerance is required and expectations of absolute peace and harmony require tempering.

Conflicts arising from human interaction are in itself unavoidable, it may even elevate to unattractive levels. However, when the dust settles around the conflict, it is more often than not how the parties continue to engage each other thereafter, which may serve as an indicator.

One should also consider the de minimis principle in assessing the conduct, as was held in S v Visagie 2009 (2) SACR 70 (W), quoting R v Maguire 1969 (4) SA 191 (RA) at 193:

‘It seems to me that, wherever the defence of de minimis non curat lex is raised, the court has to consider all the circumstances under which the blow which is said to be trivial was delivered. In some circumstances, a blow may be considered so trivial as to justify the court ignoring it altogether, in different circumstances, a similar blow might be a relatively serious assault; for example, slaps delivered by fishwives to each other during a drunken brawl might well be ignored on the principle of de minimis non curat lex whereas an unprovoked slap delivered to the face of a lady, say at a garden party, could not be similarly ignored’ (my italics).

As pointed out, this does not mean that all minor conduct must be tolerated or that victims should be obliged to endure discomfort, but rather in certain instances the conduct should be recognised for what it is.

I pause to distinguish assault within the context of the respective Acts, and submit that neither specifically refers to assault, except in s 2(1)(b) of the Protection from Harassment Act where it is mentioned in the context that complainants are to be informed of their right to also lodge a criminal complaint for assault.

While the Domestic Violence Act refers to ‘physical abuse’ and the Protection from Harassment Act ‘harm or accosting’, they remain forms of conduct in which the former constitutes an element of domestic violence and in the latter harm of a physical nature.

Notwithstanding that such conduct remains distasteful and unacceptable, it remains assault in the criminal context until it too takes on a repetitive form, or is of such a nature, that the singular incident could lead to the reasonable apprehension of future harm.

If for example, a respondent approaches a complainant aggressively, assaults them and further promises to return, then it could in those circumstances be inferred that the assault may be repeated in which case protection should be granted.

Similarly, if on periodical occasions of overindulgence or otherwise a spouse becomes aggressive and physically abusive, then the assault crosses the line into the sphere of domestic violence.

Therefore, not all incidents of assault are necessarily matters requiring protection under the respective Acts, however, such incidents do not lose their criminal element even if it lacks repetition and may still be investigated within the criminal procedure context.

Having regard to the extract from the Maguire case, it is not uncommon during hearings to uncover evidence that the applicant is equally to blame for the incident, or at least served as a catalyst in unleashing the unattractive tirade causing the storm in the tea cup to overflow.

In circumstances such as these, while the conduct in itself may be unattractive, it does not necessarily lead to the conclusion that relief should be granted without it having an element from which it could be inferred that there exists a reasonable apprehension that it may repeat in the future.

I hasten to add that caution must be applied at all times to ensure that victims receive the protection deserved. The obvious cases go without saying and I in no way intend to downplay those.

It is in those other instances, where I submit that some evidence must exist to infer such a conclusion, it cannot alone be inferred on the subjective belief held by the applicant that it could occur in the future, and, therefore, ‘just in case’ the interdict should be granted.

The author CB Prest SC The Law and Practice of Interdicts (Cape Town: Juta 1996), submits that a reasonable apprehension of harm is one which a reasonable person might entertain on being faced with the facts, which the court finds to exist on a balance of probabilities. The author goes on to point out at p 45 that:

‘The test for apprehension is an objective one. The applicant must therefore show objectively that his apprehensions are well grounded. Mere assertions of his fears are insufficient. The facts grounding his apprehension must be set out in the application to enable the court to judge for itself whether the fears are indeed well grounded.’

In Gouws v De Lange and Another (ECP) (unreported case no 2842/14, 3449/14, 3450/14, 11-12-2014) (Revelas J) the court found that the conduct complained of had been repeated at various stages over a period of approximately 18 months and that this demonstrated that the respondent was unable to restrain himself. It also found that the conduct went far beyond freedom of expression and opinion and was intended to inflict harm.

The case illustrated that to a certain extent, conduct could be expected to be tolerated, but when it is repeated a line is crossed, at which point s 10 of the Constitution, which provides that everyone has inherent dignity and the right to have their dignity respected and protected, is infringed.

It further impugns the right of freedom and security of the person, which provides at s 12(1)(c) of the Constitution that – everyone has the right to freedom and security of the person, which includes the right – to be free from all forms of violence from either public or private sources.

The challenge, therefore, remains to ensure that the maximum protection is afforded to those deserving of protection without in the process placing undue restrictions on others. The balance of probabilities should in all circumstances receive careful consideration.

Leon Ernest Rousseau BProc LLM (Unisa) is an Acting Magistrate in Cape Town.

This article was first published in De Rebus in 2019 (March) DR 5.