CASE LAW UPDATE

Facts: The appellant is a practising attorney. The State’s witness, Ms Brits, was a clerk of the civil court at Ermelo Magistrate Court at the time when the incidents occurred. Her duties, according to her, were amongst others, issuing of Emolument Orders in terms of Section 65J of the Magistrates Courts Act 32 of 1944. The appellant and Ms Brits were friends. Ms Brits recommended the appellant to Bayport, to act as their correspondence attorney in matters to be dealt with in terms of section 58 of the Act at the court. Subsequent thereto, the appellant acted as correspondence of Bayport and brought thousands of files to Ms Brits who then granted judgments. The appellant would give Ms Brits money, pay her debts, including paying for her rent, car instalment and even giving her a bank card to use as her own. The appellant was convicted in the Regional Court for corruption in contravention of section 4(1)(b)(ii)(aa) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 and sentenced to five years' imprisonment.

Appeal: Aggrieved by the conviction, the appellant applied for leave to appeal the conviction in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977 and the application was granted. The appeal concerns the conviction only. At issue is whether the court a quo treated the evidence of a single witness, Ms Brits, who is also a section 204 witness or accomplice, with caution and whether the State proved its case beyond reasonable doubt.

Discussion: Regarding the issue of the section 204 witness, the court a quo made a finding that the witness, Ms Brits, did not answer questions honesty and truthfully and subsequent thereto the witness was not granted immunity. It is correct to say that the witness did not answer questions that implicated her, hence the court found that she did not answer questions honestly and truthfully. Does it mean, therefore, that the whole evidence of the witness must not be accepted, simply because she did not tell the truth on certain aspects? The answer is in the negative. The court a quo considered the evidence in its totality to convict, it did not consider the evidence on a piece-meal approach or considered certain evidence in isolation. Consequently, it makes sense that indemnity in terms of section 204 was denied on the basis that some of the evidence of Ms Brits was found to be false and unreliable and some of her evidence was found to be reliable. The court a quo’s approach to the evidence is supported by the decision of S v Kuyler 2016 (2) SACR 563 (FB), which the court agrees with.

Findings: There must be sufficient corroboration for the witness testimony that indeed a corrupt relationship between her and the appellant existed. The court a quo found that there was such a relationship, and its finding is based on the fact that a mutual beneficial relationship existed in the sense that the appellant was giving Ms Brits money, paying for her car, rented her house, paid school fees and had even given her a banking card to utilise unrestricted during holidays. The explanation that the appellant proffered for her financial support to Ms Brits, was that the money was for a loan which was duly repaid in cash. The appellant as an attorney knew or ought to have known that Ms Brits, who was put under administration, would not be able to repay a loan of the magnitude of money she was giving to her. The appellant is not in denial that the files were taken to her place and put into a rondavel. These files were immediately removed and taken to the magistrate's office, after it emerged that there were investigations over them. There would never be a need to remove the files if there was nothing illegal happening about them. There is no doubt as to the correctness of the court a quo’s factual findings. The State proved the guilt of the appellant beyond reasonable doubt.

Order: The appeal against conviction is dismissed.

MANTHATA AJ (MASHILE J concurring)

Facts: The first and second applicants were married at the branch of the Department of Home Affairs (DHA). After their marriage was solemnized, and in the process of its registration, the first applicant was asked by the DHA official whether she was assuming the second applicant’s surname or retaining hers. When both applicants informed the official that the second applicant would assume the first applicant’s surname, he replied that the system did not allow that. On further inquiry, a second staff member in the department confirmed that the applicant’s request could not be accommodated. The applicants elected to retain their different surnames. The first applicant became aware from a portal related to the registration for National Elections that her surname was unilaterally amended by the DHA to the second applicant’s surname. She had not applied for the change of her surname and had no intention to do so. This amendment affected her FICA and credit records with ABSA Bank. Her FICA documentation was non-compliant and detrimentally affected her home loan status.

Application: The applicant approached the court seeking an order declaring Section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 to be unconstitutional to the extent that it discriminates on the ground of gender, by failing to afford a female person the right to have her spouse assume her surname; to afford a male person the right to assume the surname of the woman with whom they conclude a marriage or after having assumed her surname, resume a surname which he bore at any prior time; and further relief.

Discussion: The applicants believe that the failure of the Department of Home Affairs to allow the second applicant to assume the first applicant’s surname and the fourth applicant to assume the third applicant’s surname is the result of the provisions of the Births and Deaths Registration Act 51 of 1992 and the Regulations on the Registration of Births and Deaths, 2014. The applicants contend that the Act and the Regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality and differentiates based on sex and gender. In contrast, section 9(2) of the Constitution stipulates that the right to equality includes the full and equal enjoyment of all rights and freedoms. Section 9(3) provides explicitly that the State may not unfairly discriminate directly or indirectly against anyone based on, among other things, gender or marital status. Relying on the President of RSA v Hugo 1997 (4) SA 1 (CC), the applicants contended that, at the heart of the prohibition of unfair discrimination, lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect, regardless of their membership of particular groups.

Findings: The limitation was not justifiable under the limitation clause. It perpetuates gender inequality and robs individuals of their identity and autonomy. Similarly, by restricting a man's right to assume their wife's surname, the law violates the principles of gender equality and perpetuates harmful stereotypes, as men are denied a choice that is available to women. It fails to recognise modern societal values like gender equality and fluidity in identity choices and reinforces the norm that men must conform to traditional masculine norms. It is intrusive and serves no compelling state interest, in that it requires government involvement in a profoundly personal decision, violating Individual privacy and autonomy. There is no compelling interest in regulating surname changes, and existing legal processes can be amended to manage these changes without the intervention of the Director-General, and the bureaucracy that goes with it. The limitation does not meet the "rational connection" and "proportionality" tests, rendering the limitation unjustifiable.

Order: The applicants have established their entitlement to the relief sought. The relief sought in prayers 1-6 of the notice of motion are granted.

MHLAMBI J

Facts: The applicant and the respondent were married in 2010, and the marriage still subsists; however, during 2022 the applicant instituted divorce proceedings in the KwaZulu-Natal Division of the High Court, and these have not yet been finalised. The applicant, the respondent, and their minor child lived in Durban until mid-2024. Then the applicant left their shared home in Durban and relocated to Cape Town without informing the respondent, leaving the minor child with the respondent. According to the applicant, she suffered an emotional and mental breakdown and flew to Cape Town to be with her mother and other members of her extended family as she needed support.

Application: The parties cannot agree on how they will share the holidays with the minor child. This is an urgent application in which the applicant seeks an order, pending the finalisation of the relief sought in Part B, that the respondent be compelled to allow the minor child, MC, to travel from Durban to Cape Town and remain in the care of his mother for a certain period. In part B of the application, the applicant seeks an order to transfer the divorce action from KwaZulu-Natal to the Western Cape, as well as relief related to an investigation by the Family Advocate.

Jurisdiction: The applicant's counsel submitted that this court enjoys inherent jurisdiction to hear the matter as the upper guardian of minor children, particularly since there is currently no parenting plan between the parties regulating the question of care and contact. The respondent's counsel submitted that this court (Western Cape High Court) does not have jurisdiction to hear the matter, because the minor child is in Durban, outside the jurisdiction of this court. In considering this application, the minor child's best interests remain the yardstick against which everything must be measured. However, the court does not understand this right to trump a court’s jurisdictional competence or capacity to hear a matter. The court also does not understand this right to be giving a court jurisdiction where Parliament has explicitly excluded such jurisdiction in legislation.

Findings: In the present matter, section 29 of the Children’s Act 38 of 2005 (court proceedings and applications which may be brought before the High Court) serves as an overriding determinant of jurisdiction in circumstances where a court is called upon to extend, suspend or circumscribe a parent's parental rights and responsibilities. This court cannot entertain an application instituted in terms of section 28 (parental responsibilities and rights) in which its jurisdiction is explicitly excluded by section 29 of the Children’s Act in instances where the minor child concerned is not ordinarily resident in its jurisdiction, even if by consent between the parties. This court does not have the jurisdiction to consider granting the relief that will amount to an extension of the applicant's current parental responsibilities and rights, as this application was instituted in this court without the minor child being ordinarily resident in the court's area of jurisdiction.

Order: The applicant’s application is dismissed, and the applicant is ordered to pay costs on Scale A.

LEKHULENI J

Facts: The history of the relationship between these parties is sad. They have been married since November 2016. The respondent (an accountant) says that the appellant (a businessman) has been abusive, controlling and manipulative for most of their married life. The appellant says much the same about the respondent. The fact is that their relationship has been one of strife and conflict. On an evening in 2020, in the midst of the Covid-19 pandemic, the parties had an argument. The following morning, they had another argument and they ended up in a tussle over the appellant’s laptop. That afternoon the respondent was examined by a doctor and the only visible injuries were two bruises on her left leg. The respondent alleged that, since she obtained an interim protection order, the appellant had intimidated, threatened, harassed, stalked her, and had enlisted the assistance of third parties to intimidate her.

Appeal: Against an order granted against the appellant in terms of the Domestic Violence Act 116 of 1998 in the Madibeng District Court in 2023. The appellant was interdicted from physically abusing, intimidating, stalking or contacting the respondent. The final order was granted pursuant to a similar interim order granted against the appellant in 2020.

Discussion: The appellant said that the respondent has had long-standing mental health issues. He believes that she suffers from a multiple personality disorder. Her doctor suggested that the appellant should record concerning incidents. The appellant had transcripts of two such recordings and they are troubling. They clearly reveal a different side to the respondent's personality as to what she tried to put forth in court. She is heard to abuse the appellant for long periods of time, despite the appellant's attempts to calm her down. The respondent's response to the recordings is to deny having any knowledge of the incidents, and to suggest that the appellant had drugged her. The respondent's version, that the appellant was constantly abusive and that she was the submissive quiet wife is, in the court’s view, not so.

Findings: It should have been factored into the process of considering credibility that the respondent had on previous occasions been extremely abusive towards the appellant. If considered with the fact that the respondent was clearly the aggressor on the morning in 2020, when the one single physical assault allegedly occurred, that should have given the court a quo pause for thought. There can be no dispute that if a final order is made, a powerful tool is placed in the applicant’s hands. Laudable as the purposes of the Act are, it cannot be denied that a malicious applicant can cause serious harm to the other person if he/she abuses the procedure by making false allegations. A domestic violence order is not simply there for the taking. It can have devastating consequences for a person who is, firstly, denied the right to engage with the matter before an interim order is granted, and, secondly, is the subject of a warrant of arrest that can be wielded at a whim by an applicant. In circumstances such as in this case, a final order was not appropriate.

Order: The appeal is upheld and the order of the court a quo amended such that the application is dismissed. The respondent shall pay the costs of the appeal on Scale B.

SWANEPOEL J (MOOKI J concurring)