Dumisani Vuyisile Tsobo vs. Bridgitta Matseliso Tsobo

South Africa

15.07.2022

Family

Applicant must establish, on balance of probabilities, that Respondent has committed an act of domestic violence

The Appellant brought an application for a protection order against the Respondent in terms of Section 4(1) of Domestic Violence Act, 1998 in the Bloemfontein Magistrate’s Court on 3 June 2019. At the time, the parties were married, but living separately; the Appellant living in Pretoria and the Respondent in Bloemfontein. They have one minor child, namely a boy who was two years old at the time. They divorced from each other during October 2020.

The Appellant sought wide-ranging relief against the Respondent, including an order restraining her from committing any act of domestic violence against him. The application was dismissed on the basis that he had failed to establish that the Respondent had committed any act of domestic violence. The Appellant subsequently appealed against the magistrate’s order to the high court. That appeal was also dismissed.

Section 5(2) of the Act requires an applicant for an interim protection order to satisfy the court that there is prima facie evidence that the Respondent is committing or has committed an act of domestic violence; and that ‘undue hardship may be suffered by the complainant as a result of such domestic violence, if a protection order is not issued immediately’. In terms of Section 6(4), when an application is opposed, the court must, after hearing evidence and if it is satisfied on a balance of probabilities that the Respondent has committed or is committing an act of domestic violence, issue a protection order in the prescribed form.

The Appellant, having relied on innocuous SMSes, which he received from the Respondent months before he launched the application for the protection order, was unsurprisingly unable to establish that he would suffer any hardship as a result of domestic violence, if a protection order was not issued immediately. The Appellant has accordingly failed to establish, on a balance of probabilities, that the Respondent has committed an act of domestic violence.

Instead of establishing a prima facie case of verbal, emotional or psychological abuse, the facts of this case have shown that, in applying for the protection order, the Appellant was not bona fide and was merely abusing his superior economic position to harass the Respondent. High Court correctly found that, the SMSes did not constitute repeated insults, ridicule or name-calling. Appeal dismissed.

Tags : Domestic violence Protection Proof

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