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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

Case number:  A3032-2016

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

24 October 2017

In the matter between:

KS [. . . ]                                                                                      APPALLENT

AND

AM [ . . .]                                                                                      DEFENDANT

Summary: Appeal against the decision of the magistrate court refusing to grant additional conditions to an interdict made in terms of section 7(1) of Domestic Violence Act 116 of 1998. The respondent interdicted from publishing explicit sexual video footage and photos of the applicant on Facebook. Court restating the constitutional norms in the interpretation of statutes. Magistrate’s decision set aside on the ground of failure to apply the correct principles in interpreting the discretionary powers given by s 7(2) of the Domestic Violence Act. The respondent ordered to submit the video footage and the photos to the Sheriff forensic audit and removal from any of the digital equipment they may be found.  

JUDGMENT

MOLAHLEHI, J

Introduction

[1] The issue in this appeal is whether the Gemiston magistrate court (the court below) erred in refusing to grant the appellant who was a victim of domestic violence an order requiring the abuser to hand over all digital devices or materials used in committing the offence to the authorities, in terms of s 7 (2) of the Domestic Violence Act 116 of 1998 (the Act).  

[2] On 17 December 2015, an interim protection order granted on 26 August 2015 came before the court below for confirmation.  The interim order amongst others prohibited the respondent, AM […] from:

a. Physically, verbally or emotionally abusing, threating, harassing, following, stalking or intimidating KS […];

b. Enlisting the help of another person to do any of the above;

c. Entering KS […] the place of residence and the place of employment;

d. Directly or indirectly contacting KS […], whether in person, telephonically (including SMS), or via social media (including Facebook, Whatsapp and Linkedin);

e. Posting explicit material (including comments, videos or photographs) of KS […] on any platform, including any social media forum, or sending such material to any other third party.

[3] On the return date, the appellant sought an order in terms of s 7 (1)(a), (b), (e) and (f) and s 7 (2) of the Act. The order was granted in terms s 7(1) of the Act.

[4] Section 7 (1) of the Act provides:

(1) The court may, by means of a protective order referred to in section 5 or 6 prohibit the respondent from-

(a) committing an act of domestic violence;

(b) enlisting the help of another person to commit any such act;

(c) entering a residence shared by the complainant and the respondent: provided that the court may impose this prohibition only if it appears to be in the best interests of the complainant;

(d) entering a specified part of such a shared residence;

(e) entering the complainants residence

(f) entering the complainants place of employment;

(g) preventing the complainant who ordinarily lives or lived in a shared residence as contemplated in subparagraph (c) from entering or remaining in the shared residence or a specified part of the shared residence; or

(h) committing any other act as specified in the protection order.

[5] Section 7 (2) of the Act provides:

“2 The court may impose any additional conditions which it deems reasonably necessary to protect and provide for the safety, health or well-being of the complainant, including an order-

(a) To seize any arm or dangerous weapon in the possession  or under the control of the respondent, as contemplated in section 9; and

(b) That a peace officer must accompany the complainant to a specified place as assist with arrangements regarding the collection of personal property.”

[6] The application for the confirmation of the interim interdict was opposed by the respondent. He denied having harassed the appellant and also stated that the relationship between the two of them terminated at end of July 2015 and not January 2015 as contended by the applicant.  His version was rejected by the court below and accordingly the interim order made in terms of s 7 (1) of the Act was confirmed.

The background facts

[7] It is common cause that the appellant and the respondent had an intimate relationship which began after they met during May 2014.  The appellant contended that the respondent presented himself as an unmarried man.

[8] The relationship between the two grew to a level where they agreed to marry.  It was for this reason that they introduced each other to their respective family members. During December 2014, the respondent bought the appellant an engagement ring. It turned out later during their relationship that the respondent was in fact married.

[9] The appellant came to know that the respondent was married in January 2015 when his wife arrived at her home uninvited with two friends and confronted her about her relationship with the respondent.

[10]  It is apparent that the appellant terminated her relationship with the respondent after the confrontation.

[11]  The respondent refused to accept the termination of the relationship by the appellant.  He then made threats to the appellant telling her that if he could not be with her nobody would.  He made the threats over the phone and through text messages.

[12]  He also created a Facebook account during July 2015, wherein he befriended the appellant’s friends and sent text messages of defamatory nature about the appellant.

[13]  During August 2015, the respondent created a fraudulent Facebook account in the name of the appellant and posted therein certain explicit sexual video footage and photographs.  The footage was seen by the appellant’s family members including those in America.  They phoned the appellant and alerted her to the footage.

[14]  The appellant through her attorneys approached Facebook to have the footage removed and to delete the account.

[15]  The appellant stated in her affidavit in support of the application that the respondent confirmed with her that he had created the Facebook account and posted the footage to prevent other men showing interest in her.

[16]  During August 2015 the respondents made telephonic threats to the appellant and told her the following:

(a) He could not live without her.

(b) He would get another man to rape her, if she was to be involved with another man.

(c) He knows car hijackers and gangs he use to get her family killed. 

 

The grounds for appeal

[17]  The appellant has raised several grounds of appeal the essence of which concern the criticism that the magistrate failed to properly interpret the provisions of s 7 (2) of the Act. It is contended in this respect that the magistrate erred in not directing the respondent to place in the temporary custody of the Sheriff all digital devices used in the commission of the offence. The purpose of the prayer in this respect was to have forensic search into the gadgets used in the commission of the offence and to permanently remove the pictures and video material from the respondent.

The decision of the court below

[18]  As alluded to above the court below rejected the version of the respondent as being untrue and found that the appellant had made out a case for the protection order. It found that the respondent engaged in a pattern of conduct which was threatening, causing fear, emotional and psychological pain and suffering on the part of the appellant.

[19]  In relation to the prayer to have the respondent to place in the custody of the Sheriff all digital devices used in committing the offence the court below held:

“The court agrees with the Applicant’s attorney that any additional condition that may be imposed by this court, but it is also of the view that it is not reasonably necessary to take such drastic steps to the extent of seizing all the respondents’ digital equipment and is convinced that that the conditions that are already in place are sufficient to protect and provide for the safety and the wellbeing of the Applicant.”

 

The issue raised by the appellant.

[20]  The appellant has formulated the issue for determination by this court to be:

“Whether section 7 (2) of the Domestic Violence Act 116 of 1998 (the Act) –

(a)   empowers the courts to make an order allowing a victim of domestic violence to ensure that any private material concerning her (whether video, photo, audio or any other form) is permanently removed from the abuser’s digital device; and

(b)   obliged the court a quo to grant the appellant an order in this case.”

[21]  It was contended on behalf of the appellant that s 7 (2) of the Act must be interpreted purposively and generously to promote the rights to dignity, privacy, bodily and psychological integrity of women. It was further submitted that where the abuser is in control of private material concerning the victim, she suffers continuous violation of her rights for as long as the abuser retains such control.

[22]  It was for the above reasons that the appellant contended that the appropriate remedy which the court below ought to have granted to protect her well-being was to grant the order as was prayed for in the application for the interdict.

[23]  In opposition to the application the respondent contended that the appellant in the court below did not show that the continued possession of the material by the defendant posed a threat to her safety, health and wellbeing.

[24]  It was further argued that the relief sought by the appellant if granted would intrude into the rights of the respondent’s to privacy, the right not to have his home or property searched and his possession in relation to the laptop, computer, video seized.

[25]  The approach to adopt when interpreting statutes is set out in section 39 (2) of the Constitution which provides:

“(2) When interpreting any legislation, and when developing common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.  

[26]  The Constitution further provides under s 233 that:

“When interpreting any legislation, every court must prefer any reasonable interpretation of legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.” 

[27]   It is clear that the provisions of section 39 (2) of the Constitution are peremptory. The courts, tribunals and other forums are required when interpreting legislation to review it through the perspective of the Bill of Rights. The guiding principle in this regard is the promotion of values and objects of the Bill of Rights.

[28]  The guiding principle in the interpretation of s 7(2) of the Act, has to be based on the perspective of the norms and values enshrined in the Bill of Rights which are indeed broadly speaking expressed in the preamble to the Act being:

“To afford the victim of domestic violence the maximum protection from domestic abuse that the law can provide.”

[29] The Act was enacted to promote and achieve the objectives of section 9 and 12 of the Constitution. Section 9 provides for the equality, full right to quality protection and benefit of the law. Section 12 provides everyone with the right to freedom and security of the person including being free from all forms of violence from either public or private.

[30] In contending that the interpretation given to the provisions of section 7 (2) made by the magistrate was improper Counsel for the appellant relied on the case of S v Baloyi [1]. The case was decided before the Act came into operation in November 1999.  The Act at that stage had already been passed and came into effect on 15 December 1999.

[31] The Baloyi’s case had to do with the validity of section 3 (5) of the Prevention of Family Violence Act 153 of 1993. The issue of the validity of the section was considered in the context where the appellant an army officer had contravened an interdict restraining him from assaulting his wife and children. After pointing out the effects of the crime of family violence the court quoted with approval from a draft document of the US National Council of Juvenile and Family court where it was said:

“Domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. Violence in families is often hidden from view and devastates its victims physically, emotionally, spiritually and financially. It threatens the stability of the family and negatively impacts on all family members, especially the children who learn from it that violence is an acceptable way to cope with stress or problems or to gain control over another person. It violates our communities’ safety, health, welfare, and economies by draining billions annually in social costs such as medical expenses, psychological problems, lost productivity and intergenerational violence.”

[32] The above was said in the context where it was supportive and propagating the effective legislation to deal with the problem of family violence in the society. The court further said:

“The imperative for such legislation, as noted by the Law Commission derives from section 12(1) of the Constitution, which reads:

‘Everyone has the right to freedom and security of the person, which includes the right—

. . . .

(c) to be free from all forms of violence from either public or private sources;

The specific inclusion of private sources emphasises that serious threats to security of the person arise from private sources. Read with section 7(2), section 12(1) of the Constitution has to be understood as obliging the State directly to protect the right of everyone to be free from private or public domestic violence. Indeed, the State is under a series of constitutional mandates which include the obligation to deal with domestic violence: to protect both the rights of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone not to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way.”

[33] Another aspect of the preamble to the Act is the recognition that:

(a) domestic violence as a serious social evil.

(b) that there are some high incidences of domestic violence in this country.

(c) the remedies currently available to the victims of domestic violence have proven to be ineffective

[34] In Omar v Government of the Republic of SA,[2] the court held that the high level of incidences of domestic violence in the country was unacceptable and that had resulted in severe psychological and social damage to the society. The need for an adequate legal system to address this problem was emphasised. The court further held that:

"18. . . . It is understandable for the legislature to enact measures that differ for the generally applicable to criminal arrest and prosecutions. It is clear the Act serves a very important social and legal purpose. “

[35] In F v Minister of Safety and Security,[3]  the court held that the State through its enforcement and crime prevention agencies has a duty to protect women and children against the plague of violent crimes. The primary responsibility is with the police as the law enforcement agency. The responsibility extends to the courts in the performance of their function in ensuring that the rights entrenched in the Bill of Rights for both women and children are not trampled on by sexual abuse or threat thereof.

[36] It was further stated in the above case that:

“56 The threat of sexual violence to women is indeed as pernicious as sexual violence itself. It is said to go to the very core of the subordination of women in society. It entrenches patriarchy as it imperils the freedom and self-determination of women. It is deeply sad and unacceptable that few of our women or girls dare to venture into public spaces alone, especially when it is dark and deserted. If official crime statistics are anything to go by, incidents of sexual violence against women occur with alarming regularity. This is so despite the fact that our Constitution, national legislation, formations of civil society and communities across our country have all set their faces firmly against this horrendous invasion and indignity imposed on our women and girl-children.

57. It follows without more that the State, through its foremost agency against crime, the police service, bears the primary responsibility to protect women and children against this prevalent plague of violent crimes. Courts, too, are bound by the Bill of Rights. When they perform their functions, it is their duty to ensure that the fundamental rights of women and girl-children in particular are not made hollow by actual or threatened sexual violence. They must acknowledge the policy-drenched nature of the common law rules of vicarious liability, that it is the courts that have in the past fashioned and favoured them, and that now the rules must be applied through the prism of constitutional norms.”[4]

[37] The obligation of the courts to protect women against sexual abuse through electronic gadgets and media was recognised in the Canadian case of R v BZ,[5] where similar to the present case the victim's explicit images of a sexual nature were distributed by electronic means by the offender without the consent of the victim. In dealing with the issue the court said:

“There is a disparate impact on vulnerable young female, precisely what Mr B.Z. did to the complainant in this case, which she poignantly described in her victim impact statement, such that the medic being characterized as a vulnerable class of victims requiring the Court’s protection. [. . . ]

Incidents of non-consensual distribution of intimate images and non-consensual sexting dove tail the increased use of technology for communication purposes in our society, and escalating risk-taking behaviour affect sexting leads to, which has been content created a class of vulnerable person requiring the Court’s protection, and it is a crime that is more prevalent in our community than was previously the case.”

[38] The court found that the nature of this offence was objectifying and violating the sexual dignity and privacy rights of the victim and demonstrating an intention to degrade and humiliate. The potential for psychological harm consequent the objectification and degradation increased significantly.

[39] The court below having granted the protection order, the prohibitive conditions under s 7(1) of the Act did not arise as an issue in this matter.  The issue that however, is the subject in the present matter is whether the continued possession of the offensive material by the respondent constitutes violation of the appellant’s dignity, privacy, bodily and psychological integrity.

[40] In contending that the continuous possession of the offensive material by the respondent constitutes violation of the appellant’s dignity, privacy and psychological integrity reliance was placed on the case of Prinsloo v RCP Media,[6]  which involved possession by a newspaper of the explicit images depicting sexual intercourse between a couple who sought to retrieve the same from the newspaper. The court held that:

“Therefore I am of the view that possession of such images by someone who is not authorised by the original author or those depicted on them could in principle amount to an ongoing violation or at least a continuing threat of violation of one’s privacy. Every instance when the images are viewed, even by a person who has already seen it, could constitute a renewed intrusion into one’s privacy.  The mere fact that one is at the mercy of another, who could take a look whenever he or she feels like it, renders one’s privacy worthless or at least very vulnerable and could violate one’s dignity. No one could be expected, in principle, to have to rely on the responsibility and decency of a possible repeated violation.”

[41] Another case relied on by the appellant is that of NDPP v Mahomed[7], where the court in dealing with seizure of privilege information held that:

“The retention by the registrar of the material, or copies of the material, even if that material is not viewed, will in my view be a continuing violation of the respondent’s privacy, which is protected against violation by section 14 of the Bill of Rights. I do not think privacy is violated only by private communication are viewed by or exposed to viewing by another. I think it is violated just as much merely by dispossessing a person over material that he or she is entitled to hold in private, [. . .] In my view a violation occurs when, and for so long as, a person is dispossessed of control over private material.”

[42] It was in the context of the above submission made on behalf of the appellant that this court at the hearing of this matter on 22 August 2017 directed that the parties to file further heads of argument addressing the issue of whether the court below in refusing the relief sought by the appellant under s 7(2) of the Act was under the impression that the respondent had originally obtained the consent of the appellant in taking the pictures and recording the video materials and if so what the impact of that  may have influenced the magistrate in the decision not  to grant the prayer sought by the appellant.

[43] The respondent conceded in the further heads of argument that while there was no consent to have the photos and the video materials posted on the social media, there was never any question of lack of consent to developing the material by the appellant. It was submitted that the appellant did not make out a case in the court below that she did not consent to the making of the material.

Evaluation/analysis

[44] It is apparent from the reading of the judgment of the court below that it accepted that the appellant did not consent to having anything to do with her after January 2015 when she terminated the relationship. The court further found that the posting the offensive material on the fake Facebook account constituted an act of domestic violence against the appellant. It was for this reason that the prohibitive order in terms of s 7(1) of the Act was granted.

[45] However, the court below refused to grant the order prayed for in terms of s 7(2) of the Act.  In refusing to grant the order it held that it was not necessary to do so as that would be a drastic step of seizure of the digital equipment of the respondent.

[46] The record before this court does not reveal that there was any evidence before the court below that the appellant did not consent to the taking of the photos and the production of the video material.

[47] It is trite that the power to interfere with the exercise of the discretion by a lower court is limited to cases in which it has been shown that the lower court exercised its discretion capriciously or upon a wrong principle, or has not brought its unbiased judgment to bear on the question, or has not acted for substantial reasons.[8] In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others,[9] the court held that:

“[11]    A court of appeal is not entitled to set aside the decision of a lower court granting or refusing a postponement in the exercise of its discretion merely because the court of appeal would itself, on the facts of the matter before the lower court, have come to a different conclusion; it may interfere only when it appears that the lower court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.”

[48] In the General Council of the Bar of South Africa v Geach and others,[10] said that as a court of appeal it was not intended to interfere only because it might have seen things differently.

[49] In Trencom Construction (Pty) Limited v Industrial Development Corporation of  South Africa Limited and Another,[11]  the Constitutional Court said:

“[87] This Court has, on many occasions, accepted and applied the principles enunciated in Knox and Media Workers Association. An appellate court must heed the standard of interference applicable to either of the discretions.  In the instance of a discretion in the loose sense, an appellate court is equally capable of determining the matter in the same manner as the court of first instance and can therefore substitute its own exercise of the discretion without first having to find that the court of first instance did not act judicially.  However, even where a discretion in the loose sense is conferred on a lower court, an appellate court’s power to interfere may be curtailed by broader policy considerations. Therefore, whenever an appellate court interferes with a discretion in the loose sense, it must be guarded.

[88]  When a lower court exercises a discretion in the true sense, it would ordinarily be inappropriate for an appellate court to interfere unless it is satisfied that this discretion was not exercised—

“judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.”

An appellate court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the lower court.”

[50] The exercise of the discretion under s 7(2) of the Act in favour of the appellant would undoubtedly have entailed search a seizure process. This would have invariably intruded into the rights of the respondent. It would seem from a proper analysis this is what the court below considered to be a drastic step.

[51] It is evidently clear that the materials are of a private nature.  They remain so even if the appellant had consented to their production. In this respect it seems to me on the facts and the circumstances of this case the existence and possession of the materials depended on the continued relationship between the parties. The reasonable inference to draw, assuming that the appellant consented to the production material in question, is that they remained private in that they were meant for the entertainment and enjoyment of both parties while the relationship lasted.  It could never have been their intention that the other will retain them when the relationship was terminated and to use them as a weapon to attack, undermine the dignity and integrity of the other as was done by the respondent.

[52] In my view, the lower court in refusing to grant the relief sought by the appellant in terms of s 7 (2) of the Act the court exercised its discretion based on an incorrect principle.  In fashioning the relief it was enjoined to have regard to the constitutional imperative of ensuring protection of the appellant as part of the member of the vulnerable group.

[53] The lower court in this matter was faced with a situation where there seem to be no precedent dealing with the provisions of s 7 (2) of the Act.  The lower court therefore had a legal duty in fashioning the relief prayed for by the applicant to weigh and strike a balance firstly between the interest of the two parties – the right to dignity of the applicant and the right of ownership and possession of the respondent. A balance ought to also have been found in the interest of the community. This was in a sense a proportionality exercise having regard to the conflicting rights of the parties.  The exercise is to be carried out in accordance with the objects of the Bill of Rights and the weighing of the conflicting rights of the applicant and the respondent, done in the context of the positive duties of promoting dignity, equality and freedom in a constitutional state.  These are the values to which the lower court ought to have applied its mind to.[12] The conduct of the respondent spreads the insubordination of women in society and if not stopped in its tracks, this will undoubtedly perpetuate the threat to the self determination of women in society.

[54] For these reasons the court below, in fashioning the relief sought by the applicant ought to have sent a clear message to the respondent and potential domestic abusers that their conduct is unacceptable and that they will not be allowed to get “away with murder” by allowing him and the “potential others” to keep the same material they would use not only to hurt others but also to denigrate their dignity.

[55] The possession of the materials by the respondent continues to be a threat to the constitutional rights of the appellant. The material in the hands of the respondent remains a weapon in his hands irrespective of whether they are observed by him or any other person.   In this respect the interpretation by the court of the power given to it by s 7 (2) of the Act, amount to placing the appellant at the mercy of the respondent who may at any time view the material alone or with someone.  In this context her privacy and dignity is worthless or vulnerable.  This for me can be equated to placing a band on the forehead and placard at her back saying “she is worthless.”  It would also meet the very stated objective of the respondent that he would make sure that other men would not want to have a relationship with her.

[56] The principle that informs the power under s 7 (2) of the Act is that the legislature sought to provide an adequate legal system to address an unacceptable high level of incidences of domestic violence.

[57] The basic principle which the court below missed is that the appellant should not be expected in the circumstances of this case to rely on the responsibility and decency (which has already proven to be lacking) of the respondent not commit a repeat violation.

[58] In exercising the discretion under s 7(2) of the Act, the court below was enjoined to fashion a relief that would adequately address the problem that the Act sought to address. Thus allowing the respondent to keep the material amounted to perpetuating objectifying and violating the sexual dignity, privacy of the appellant and more importantly this increases her degradation.

[59] The threat and risk of repeat of further violation remains in the hands of the respondent.

[60] The proper approach which the court below failed to appreciate was that in interpreting the powers under s 7 (2) of the Act as a matter of principle the magistrate was required to look beyond the simple wording of the subsection.

[61] The principle is that consideration ought to have been given to the constitutional imperatives which the Act seeks to address including its objective of protecting the constitutional rights of victims of domestic violence. The court in failing to exercise its discretion in favour of the orders prayed for by the appellant also failed to take into account the socio-historical basis for the enactment of the legislation.

[62] The respondent admitted having recorded and published private material (explicit photos and videos) depicting the appellant.  The appellant cannot know what else the respondent has done or could do with the material, whether viewing it himself, showing it privately to others, or using it to blackmail the appellant once again, especially after the protection order expires after five years.

[63] The respondent’s possession of the material constitutes a continuous violation of the appellant’s rights to dignity, privacy and bodily and psychological integrity of the appellant.  The special order sought by the appellant, which the court below declined, is the only remedy capable of effectively protecting and providing for the well-being of the appellant, and thus is reasonably necessary in terms of s 7(2) of the Act to order the respondent to hand over the material for forensic audit to be done on the equipment used and for the same to be removed and destroyed.

[64] In light of the above I find that the appellant has made out a case for this court to interfere with the decision of the court below.  

Order

[65] In the premises the following order is made:

1. The appeal succeeds.

2. The decision of the court below under case number 993/2015 dated 17 December 2015 is set aside and replaced with the following order:

“1.     The respondent is directed to handover and place in the temporary custody of the Sheriff of this Court all digital devices under his control in order for a forensic expert appointed by the Applicant’s attorneys to identify and permanently remove from any such devices any photograph, video, audio and or records relating to the Applicant.”

3. The respondent is to pay the costs of this suit.

 

 

                                               

E MOLAHLEHI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA; JOHANNESBURG

 

I agree

 

                                     

L  VUMA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA; JOHANNESBURG

 

Representatives:

For the Applicant:  Adv. B Winks

Instructed by:  Webber Wentzel (Asmita Thakor)

For the Respondent:  Adv. P Nortje

Instructed by:  Arisha Govender Attorneys

Heard:  22 August 2017

Delivered:  24 October 2017

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