In a hot-off-the press Gauteng High Court decision dated 3 May 2024, the Court sent out a strong message about protection orders which are applied for in the Magistrate’s Courts. The gist of it is that the Magistrate’s Courts cannot fob off protection orders in terms of Section 3(2) of the Protection from Harassment Act by referring them to the Community Schemes Ombud Service (CSOS) which have jurisdiction to hear them in terms of Section 39(2) of the Community Schemes Service Act 9 of 2011.
Here’s the story: The applicant in the matter was being verbally and physically abused by Mr K. She lived in the same complex as Mr K and applied for an order of protection at the Tshwane Magistrate’s Court. She requested that Mr K be restrained from verbally and physically abusing and threatening her, harassing her and from contacting her. Protection orders are usually granted for an interim period. A return date is set by the Magistrate so that the respondent can come to Court to show the court why a final order should not be granted. Mr K came to court on the return date with his lawyers who argued that there was a technical point which needed addressing. Their point in limine which is just a fancy way of saying “a technical point to get the client off the hook,” was that the court had no jurisdiction to hear the matter and the application should have been brought and adjudicated in terms of Section 39(2) of the Community Scheme Ombud Services Act. What does this section say? Here it is:-
“In respect of behavioural issues the CSOS can grant:
- An order that a particular behaviour or default constitutes a nuisance and requiring the relevant person to act, or refrain from acting, in a specified way.
The Tshwane Magistrate’s Court agreed with this technical point and dismissed the application, basically saying that it should have been referred to the CSOS in the first place.
The applicant, not to be deterred, to her eternal credit, launched an appeal to the Gauteng High Court saying that the Magistrate’s Court had made a mistake by not abiding by Section 10(5) of the Harassment Act which says that:
‘The Court may not refuse to issue a protection order”
A Magistrate must issue a protection order if the evidence is sound and not simply refuse merely because other legal remedies are available. The Magistrate was of the view that just because both parties live in the same community scheme, the CSOS Act is applicable. This view is in conflict with Sections 38 and 39 of the Constitution which Section 10(5) is meant to give effect to.
Luckily the Judge in the Gauteng High Court saw the light and held that the CSOS ACT DOES NOT OUST THE JURISDICTION OF A MAGISTRATE’S COURT. The court has a statutory obligation to deal with an appellant’s complaint in terms of the Harassment Act.
An excellent result in my view, particularly considering the prevalent violent behaviour in our society and in particular gender-based violence.
Author: Marina Constas – Director at BBM Attorneys | Fellow of the Association of Arbitrators | Qualified Mediator, London School of Mediation