Litigation: Magistrate wrong to turn deaf ear to attorney's plea

An attorney who received hundreds of phone calls in one week from someone and then lost his application for a protection order against the harassment has succeeded in appealing the lower court’s decision, according to a Cape Times report. At the time of the lower court decision, the magistrate had reasoned he could simply block the other party’s phone number. Two judges of the Gauteng High Court (Johannesburg) said that a court may not dismiss an ex parte application for protection from harassment without the application being properly considered. The attorney applied in the Randburg Magistrate’s Court in terms of the Protection from Harassment Act. The application was accompanied by a supporting affidavit detailing alleged harassment by numerous phone calls each day, with 167 calls on one of the days. A magistrate wrote on the court file containing the application ‘I don’t understand why the applicant cannot resolve the matter by simply blocking the respondent’s number. Please explain’. The applicant responded, but did not answer the magistrate, arguing instead that there was no duty on a victim to mitigate or stop the harassing conduct of a perpetrator. The magistrate dismissed the application on the basis that the applicant refused to answer the query.

In the High Court, notes the Cape Times, Acting Judge LJ du Bruyn said the magistrate was permitted in terms of the law to ask for additional information such as asking why the applicant did not bar the number of the persons who were harassing him. He said the magistrate erred by dismissing the application without it being properly considered on a return date. The attorney told the court that the respondent persists in contacting him telephonically daily. During the period 20 July last year up until 27 July, the respondent has attempted to call him more than 300 times in one week. According to the attorney, he answered the calls twice, but the respondent simply remained silent. He explained that the matter had become intolerable as he was unable to conduct consultations as his phone kept ringing from the incessant calls. He asked the court to interdict the respondent from contacting him via telephone or WhatsApp. Noting there is no duty on a victim to mitigate or stop the harassing conduct of a perpetrator, the attorney argued that should this be the position, each matter would be resolved on the basis that the victim can simply mitigate or prevent the wrongful conduct of a perpetrator. The High Court agreed and said the magistrate was obliged to properly consider the application. It referred the application back to the Magistrate’s Court to be heard by another magistrate.

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