Pretoria - A protection order a professional jazz musician earlier obtained against a woman who claimed he had raped and sexually abused her has been overturned on appeal.
The Gauteng High Court, Johannesburg, said the magistrate, who last year issued the protection order without establishing all the facts, had erred.
Two judges on appeal found that the conduct of the woman, only identified as LW, of reporting the rape allegations did not amount to harassment and that her conduct was not unreasonable.
The jazz musician, only identified as KCA, said that he was previously in a committed relationship with the appellant.
According to him, she complained of gender-based violence, reporting him to a Swiss arts organisation for which he was doing work.
She also contacted Wits University and the National Arts Festival with these allegations.
The respondent said he is, among others, a regular performer at the Standard Bank Youth Jazz Festival associated with the National Arts Festival.
According to him, this conduct jeopardised his artistic name and resulted in loss of income for him. While admitting that they had sex – sometimes quite rough – he said it was always consensual.
Thus, he turned to court last year to obtain a protection order against her.
In the opening to his judgment on appeal in which the woman asked for the protection order to be overturned, Acting Judge AC Dodson remarked that the Protection from Harassment Act came into effect on Freedom Day 2013.
The explanatory memorandum accompanying its preceding Bill announced its “strategic focus” as “transforming justice, state and society, and access to justice”.
It promised that “the Bill will also contribute to the fight against violence against women and children”.
The judge pointed out that this appeal first came before the court in Women’s Month this year.
He added that against this backdrop, one may be surprised to learn that in this appeal, the person who sought protection under the Protection of Harassment Act is a man who complained that he was being harassed by a woman.
The musician, meanwhile, said the fact that the woman reported to three institutions that he had raped and abused her, as well two other women, amounted to harassment.
According to him, she also threatened to “go public” with the allegations.
The magistrate who issued the protection order, agreed with him, and granted the order without hearing the full story.
She simply granted the urgent protection order prohibiting the woman from communicating with third parties on social media and in the media regarding the “false allegations”.
In her appeal, the woman provided a detailed account of the history of her relationship with the respondent.
The relationship, she said, was an abusive one in which he physically threatened and intimidated her, emotionally manipulated her, and psychologically abused her.
He “eventually wore her down”, she said, into being a “frightened, appeasing and submissive person she could hardly recognise as being herself”. She said she approached the three organisations in a bid to get help.
She also pointed out that she was disabled with greatly limited mobility as she has a large metal prosthesis in her leg.
The appellant, also a performance artist, said he frequently drank too much. When drunk, he would come to her home at all hours. Often, the abuse would intensify the night before she had a performance, she said.
She gave a detailed description of the “violent” sexual acts she said she was subjected to.
The woman also submitted a message he had sent her after an alleged sexual encounter, in which he said he was sorry he made her feel unsafe and violated.
In another message, he admitted to “hurting” two other women.
Judge Dodson remarked that the man was not honest with the magistrate and that he had lied when he denied all the allegations against him.
The judge said if the magistrate knew the entire picture, she would probably not have granted the gagging order.
Pretoria News