South Africa: Eastern Cape High Court, Grahamstown

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[2010] ZAECGHC 38
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Gwadiso v S (CA&R 05/2010) [2010] ZAECGHC 38 (24 May 2010)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)
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Case No.: CA&R 05/2010 |
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Date heard: 19 May 2010 |
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Date delivered: 24 May 2010 |
In the matter between:
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MICHAEL GWADISO |
Appellant |
and
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THE STATE |
Respondent |
J U D G M E N T
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DAMBUZA, J:
The appellant was convicted by the Magistrate, Stutterheim, of contravening section 17(a) of the Domestic Violence Act (Act No. 116 of 1998). He was sentenced to R6,000.00 or 3 months imprisonment which was suspended for 5 years on certain conditions. He now appeals against the conviction.
The background facts, insofar as they appear on the record, are that on 19 February 2007 an Interim protection order was granted by the Magistrate, Stutterheim in terms of the Domestic Violence Act. In the interim order the appellant was directed to refrain from insulting, assaulting and swearing at or threatening his wife with violence. The wife (to whom I shall refer as the complainant) was the applicant in the application for an Interim protection order.
In the judgment the magistrate recounted the evidence of the applicant and stated that on that evidence he was satisfied that the appellant’s conduct had constituted a threat to the applicant. Although the appellant was in court he never gave evidence. The evidence of the complainant was, in essence, that on 16 December 2008 she had met the appellant who told her that he had dreamt that he had shot her. An argument ensued between the complainant and the appellant which culminated in the complainant laying a complaint against the appellant for contempt of a protection order.
It was submitted by Mr Ngoqo who appeared on behalf of the appellant and Mr Els, who appeared on behalf of the respondent that the State had failed to prove that the appellant had acted in breach of a valid court order. Consequently, so it was argued, the magistrate erred in convicting the appellant for contravention of a court order.
I agree. The State’s case before the court a quo was that the appellant had contravened a valid “protection order”. The record reveals that evidence led, was that an Interim protection order was granted against the appellant; that the appellant was aware of the existence of such an order and that he nevertheless acted or engaged in the conduct prohibited under the court order. The only court order which forms part of the record is the interim protection order granted on 19 February 2007. The incident on which the complaint was based happened on 16 December 2008. When putting the charge to the appellant the prosecutor stated that he had contravened a protection order issued on 9 March 2007. He also stated that the order had been served on the appellant. The interim protection order was returnable on 9 March 2007. There is no evidence as whether the matter did serve before court on 9 March 2007 and if so what happened at those proceedings. There is no evidence of a protection order issued on 9 March 2007. The prosecutor asked the complainant, at the trial, whether the appellant had received a copy of the order to which the complainant responded by saying “Correct”. But there is no evidence as to which order the prosecutor was referring thereto. At best I can only conclude that he was referring to the interim order of 19 February as it is the only order which forms part of the record. This order was only valid until 9 March 2007. Provided the order was confirmed or extended on the return day it lapsed on 9 March 2007. As I have stated there is no evidence that the interim order was confirmed or extended. Consequently as it was submitted, there is no evidence that the appellant contravened a valid protection order with which he had been served.1
The appeal must therefore succeed. The order declaring the appellant as unfit to possess a firearm also falls to be set aside.
The order I make is therefore that:
The conviction and sentence are set aside;
The order made in terms of section 103(2) of Act 60 of 2000 is set aside.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
MAKAULA, AJ:
I agree.
_________________________
M. MAKAULA
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
For the appellant: Adv. D. Ngoqo instructed by MILI Attorneys.
For the respondent: Adv. D. Els instructed by the Director of Public Prosecutions
1 Section 5(3)(a) of the Domestic Violence Act 116 of 1998 provides that an interim protection order must be served on the respondent in the prescribed manner and must call upon the respondent to show case on the return date specified in the order why a protection order should not be issued.