A protection order is not there for the taking as it has serious consequences, a judge said in overturning an order a wife obtained against her husband, whom she claimed was abusive but, it turned out, that she had, in fact, been the aggressor.
The husband successfully appealed in the Gauteng High Court, Pretoria, against the order obtained against him by his wife in the lower court.
The appellant (husband) was interdicted from physically abusing, intimidating, stalking or contacting the respondent (wife). The final order was granted after an interim order.
Judge Jan Swanepoel, in the opening to his judgment, said the preamble to the Domestic Violence Act recognised the undisputed fact that domestic violence was a widespread evil in our society.
It was unarguable that most victims of domestic abuse were women. The act, therefore, had the laudable purpose of affording victims of domestic abuse the maximum protection from domestic abuse that the law could provide, he said.
Judge Swanepoel said there could be no dispute that if a final order was made, a powerful tool was placed in the appellant’s hands.
“Laudable as the purposes of the act are, it cannot be denied that a malicious applicant can cause serious harm to the respondent if he/she abuses the procedure by making false allegations.”
He said that once armed with a protection order, an applicant could have the respondent arrested if they claimed the respondent had not adhered to the order.
He said the history of the relationship between the parties was sad. They had been married since November 2016. The wife (an accountant) had said the appellant (a businessman) had been abusive, controlling and manipulative for most of their married life.
The appellant had said much the same about his wife and the court noted that their relationship has been one of strife and conflict.
The wife’s allegations had included that, amid the Covid-19 pandemic, the parties had argued. She had said her husband had grabbed her, pushed her against a painting and shaken her. She had shouted that he was an abuser. A tussle had then ensued over a laptop and when the wife would not let go of the laptop, she had been thrown onto the dining room table.
The wife had later gone to the doctor where two bruises had been found on her left leg.
That night, the husband had stayed at a guest house and when he had left the house, the wife had laid a charge of common assault against him.
Based on that version, an interim order had been granted, interdicting the appellant from physically abusing his wife and from entering the marital residence.
The wife had later sought and obtained a variation of the interim order. She had said that since the interim order had been granted, he had intimidated, threatened, harassed and stalked her and enlisted the assistance of third parties to intimidate her.
In looking at the messages, the judge said they clearly reflected the appellant’s wish to speak to his wife to attempt a reconciliation.
The husband had said that the wife had long-standing mental health issues, that she believed that she had alter egos and she had flights of fancy. He had handed transcripts to the court, which had recorded his wife’s behaviour.
The judge said those were troubling as they clearly revealed a different side to the wife’s personality compared with what she had tried to put forth in court. She had been heard to abuse the appellant for long periods, despite his attempts to calm her down.
The wife’s response to the recordings had been to deny any knowledge of the incidents and to suggest that the appellant had drugged her.
In spite of the recordings, the lower court had issued a final interdict against the husband as the magistrate had found that he had not sufficiently countered the wife’s allegations.
Judge Swanepoel said: “I find the respondent’s version, that she had been drugged, difficult to believe. The respondent’s version, that the appellant was constantly abusive and that she was the submissive quiet wife is, in my view, not so.”
Pretoria News
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