Publications
Partners
- The KwaZulu-Natal High Court in Pietermaritzburg has set aside a protection order against a man accused of harassing his wife's niece.
- The niece alleged that four incidents occurred from 2012 to 2021.
- The court found that the order had been granted in terms of an Act that came into effect after the first alleged harassment incident occurred.
The KwaZulu-Natal High Court in Pietermaritzburg has set aside a protection order issued against a man, finding that it was granted in terms of a law that wasn't effective at the time he allegedly started harassing his wife's niece.
The judge added, however, that he believed the woman's version of events because she did not exaggerate.
It emerged in the High Court judgment that the 24-year-old niece was 12 years old when the alleged harassment occurred.
In her protection order application, she presented the Pietermaritzburg Magistrate's Court with four incidents.
The first, she said, occurred in 2012, when she was 12 years old, at her father's home in Pietermaritzburg. The man was there with his family to visit her ill grandmother.
She had been watching tv on her own when the man entered the living room.
"He then apparently touched her on her legs and her inner thigh with his hand while asking her questions about the nature of secretions that emanated from her private parts. He asked her whether she got wet and whether it felt nice. It is noted that the woman, then a pre-teen, left the man in the room and went outside the house, where she sent a text message to her cousin about what had occurred. [She] later returned to the room where the television was and sat in a single chair so that the man could not sit next her."
How safe is your neighbourhood? Find out by using News24's CrimeCheck
But he found her and sat on the arm of the chair, the court heard.
"She alleged that the man then touched her chest area private parts," the court records read.
The events were reported to her aunt and uncle but "nothing appears to have been done about the [man's] conduct".
The second incident occurred about seven years later, "sometime in 2019", according to the judgment.
The woman was about 20 years old and had taken her then boyfriend, who later became her fiancé, and her brother to her father's house to visit her grandmother.
The man was at her father's house when she arrived.
"Upon her arrival, the [woman] bent over to hug her grandmother, who was seated in a chair".
As she did so, according to court documents, "she felt someone slap her on the buttocks".
READ | KwaZulu-Natal man gets to two life terms for raping 13-year-old niece
It turned out to be the man, the court heard, and he asked her why she hadn't greeted him.
"She acknowledged him and felt obliged to hug him."
Her cousin confirmed the incident.
The third incident allegedly occurred in May 2021, during the wedding ceremony of the man's daughter.
She was tasked with duties that initially required her to sit outside the hall. She was said to have kept her shawl on a chair inside the hall for later use.
The man allegedly observed this and sat next to the chair where she had put the shawl.
Want to discuss hotly debated topics with someone from across the world? Sign up for our global dialogue programme and get matched for a conversation
"The [woman] believed that this was a stratagem devised by the [man] to force her to sit next to him."
"The [woman] was, however, not prepared to do so and sat elsewhere".
The fourth and final incident was said to be "the straw that broke the camel's back".
On 7 November 2021, the woman attended a prayer service with her then boyfriend, now her fiancé.
There was limited seating available, and she sat next to the man.
During prayer, when all participants closed their eyes, the man allegedly grabbed her left hand and "touched her engagement ring on her left ring finger and began moving her ring up and down her finger".
Seventeen days later, on 24 November 2021, the woman approached the Pietermaritzburg Magistrates' Court.
Order granted
On 30 March 2022, the magistrate's court granted the woman a protection order in terms of Section 9(4) of the Protection from Harassment Act 17 of 2011.
The man was ordered to cease all forms of communication and contact with the woman as well as her cousin and half-brother.
However, he took the matter on appeal to the High Court.
The man confirmed his presence in all the events detailed by the woman but denied the allegations against him.
He told the court that, as a family member, he had seen the woman on numerous occasions since the alleged first incident but that she "seemed perfectly fine" during those encounters.
Findings
In the High Court judgment, Judge George Mossop and KwaZulu-Natal Deputy Judge President Isaac Madondo said the Act was "enacted with the purpose of protecting citizens' rights of privacy, dignity, freedom and security of the person and their right to equality as enshrined in the Constitution".
"On a practical level, it is intended to provide victims of harassment with a robust, swift, cheap and effective remedy against such harassment," the judgment read.
The court believed the niece's version of events because she did not exaggerate what had occurred during the third and fourth incidents.
The judgment read:
"If she was making all of his up, then she would surely have made up far more explicit allegations concerning the appellant's conduct to ensure that there could be no doubts about his guilt."
However, the court pointed out that the Act only came into effect on 27 April 2013 but that the first alleged incident had occurred in 2012.
ALSO READ | 'Shockingly' light prison sentences given to pair who raped, killed 12-year-old cousin to be increased
In addition, the conduct that forms the subject of a complaint must have a "repetitive element".
"The conduct of which complaint is made, therefore, must result in some form of torment arising out of constant and ongoing interference or intimidation," the judgment read.
In the case before the court however, the judges noted that the second incident was not repetitive.
"The conduct of the appellant as regards the third and fourth incidents, in my view, is unattractive and potentially upsetting, but not actionable in terms of the Act" the judges added.
"The order granted on 30 March 2022 is set aside and replaced with the following order: 'The application for a protection order in terms of the provisions of S 9(4) of the Protection from Harassment Act 17 of 2011 is dismissed,'" the judges ruled.
