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ECJ NO: 057/2005 PARTIES: State v Hlalatu



Registrar: 20050401 (Review number) 21 June 2005


JUDGE(S): Froneman and Plasket JJ




MBUYISELO HLALATU Conviction for contravening s 17 of the Domestic Violence Act 116 of 1998 – Protection order issued in terms of the Act prohibited the accused entering the complainant’s residence. He did so on her invitation. Held that in these circumstances, he had no intention to commit the offence and the act of entering the residence was not unlawful because of the complainant’s consent. The conviction and consequent sentence were set aside. ______________________________________________________________ ___________________________JUDGMENT_________________________ PLASKET J:

[1] The accused was convicted in the Magistrate’s Court, Komga of contravening s 17 of the Domestic Violence Act 116 of 1998. The magistrate found that he had contravened the terms of a protection order, issued in terms of s 7 of the Act, which prohibited him, inter alia, from entering the premises in which the complainant resided. He was sentenced to 12 months imprisonment, six months of which was conditionally suspended. I queried the conviction and have now received a detailed response from the magistrate.

[2] The charge sheet alleged that the accused had ‘wrongfully and wilfully’ failed to comply with the terms of the protection order (the terms of which are

3 set out) in that he ‘entered house 2656 [illegible] township (Stocks and Stocks), Komga, and verbally abused Bulelani Mekeni,1 who is the complainant’s child, by insulting him with his anus’. Quite what the drafter of the charge sheet had in mind escapes me, and no evidence was led at all of any insults being directed at Bulelani Mekeni.

[3] The accused pleaded not guilty. He tendered an explanation of plea in terms of s 115 of the Criminal Procedure Act 51 of 1977, which was recorded in long hand by the magistrate. Unfortunately, I have experienced great difficulty in deciphering his handwriting and cannot set out the statement in full for this reason. (I suggest that such statements and related documents should, in future, be typed to ease the burden on reviewing judges.) From what I can make out, the accused explained that, on the day in question, the complainant sent a child to call him to her house. He duly went there. When he arrived there, she demanded money from him. He said that he had no money on him, whereupon the complainant hit him with a stick. He slapped her and she took her two children and went to the police station to lay a charge against him.

[4] The magistrate then questioned the accused to establish which allegations in the charge were in dispute. The accused admitted that a protection order had been issued against him, that it had been served on him, that it prohibited him from entering the complainant’s property, and that he entered the property. When he was asked whether he had any right to enter, he stated that he did not have a right to enter but that he had been invited to enter by the complainant. He denied having verbally abused Bulelani Mekeni. He admitted too that the protection order was still in force.

[5] The magistrate then recorded certain admissions that the accused was prepared to make in terms of s 220 of the Criminal Procedure Act. They were that, ‘on 12/3/05 you entered the house of the complainant despite the fact that there is an interdict in force which prohibits you from entering that house’.

I am not sure of the surname of the complainant or her child named in the charge sheet: it is not clearly written in the handwritten charge sheet.


[6] The State closed its case without leading any evidence, apparently taking the view that the admissions made by the accused were enough to secure a conviction.

[7] The accused then testified. His evidence was a repetition of his plea explanation. It amounted to this: the complainant was the accused’s girlfriend; she sent a child to call him to her house, invited him in and asked him for money; he said he had no money as he had spent it on himself; she took a stick and began to assault him with it; he retaliated by slapping her; she threatened to lay a charge against him, which she duly did.

[8] He was cross-examined by the prosecutor but this elicited little more than what he had admitted already. The following passage of the cross examination is, however, of importance: ‘Prosecutor: You testified that the complainant hit you with a stick. Why did she hit you? Accused: Because I told her that I don’t have money. Prosecutor: Mr Hlalatu, I find it difficult to understand that the complainant would simply take a stick and assault you after you’ve just mentioned that you spent your money that you had. Accused: Yes, sir, but it’s like that. Prosecutor: Did you owe her some money? Accused: No, Your Worship, the complainant was asking her to buy groceries for her. Prosecutor: Do you usually buy groceries for her? Accused: Yes. Prosecutor: Sir, I put it to you that on the day in question you entered the house of the complainant in breach of the court order that was granted against you. Accused: Your Worship, I went to listen for the reason for invitation of the complainant why she invited me.’

5 [9] The accused’s questioning by the magistrate was substantially longer than that of the prosecutor and, I would add, substantially more hostile too. In answer to the magistrate’s questions, the accused said that the complainant requested money from him because she was his girlfriend, that their relationship was still in existence and that they still slept with each other, sometimes at his house and sometimes at hers. The complainant’s anger, which occasioned her assault on him with the stick and her desire to see him behind bars, was explicable, in the opinion of the accused, because he had also defaulted on his previous ‘maintenance’ payment to her a fortnight before. The magistrate appeared to read a lot into the fact that while the complainant and the accused spent nights at each other’s houses, on the accused’s version, he had testified that, on this occasion, she had sent a child to call him. The accused was obviously confused by this line of questioning. This confusion, in turn led the magistrate to the conclusion – an unjustified conclusion in my view -- that he was being evasive.

[10] The nub of the magistrate’s judgment is to be found in the final paragraph of his judgment. He stated: ‘The basics of this particular offence is that there is a domestic violence interdict. You know about it because it was served on you and it provides for something that you admit that you did. It provides that you are not allowed to enter into that house and you admitted that you entered that house so the court has no other option but to find you guilty of failing to comply with the family violence interdict.’

[11] The magistrate’s judgment is fleshed out by his response to my query in which he stated that the accused’s ‘mens rea is to be found in the fact that that he wilfully and wrongfully entered the house in disobedience of the prohibition that the court imposed on him. If the complainant did invite him into her house, the invitation cannot overrule the court order’.

[12] He also appears to have taken the view that the accused’s evidence could not be reasonably possibly true -- a conclusion that I do not agree with - because it is so improbable, in his view, that the complainant would still be

6 the accused’s girlfriend despite having obtained an interdict against him. Intimate relationships between men and women come in all shapes and sizes and many are fraught with the types of contradictions that are disclosed by the evidence of the accused. Indeed, the mechanisms of the Domestic Violence Act are designed to deal with a particular form of violence characterised by its ‘hidden, repetitive character’2 and often perpetrated within an ongoing familial or intimate relationship.3 The accused’s evidence simply cannot justifiably be rejected as being beyond the realms of reasonable possibility on this account. Indeed, I was struck, when reading the record, by the candour and openness of the accused, and by the consistency of his version. From the magistrate’s questioning of him, I gained the impression that the magistrate had placed the onus on him to prove his defence.

[13] Having found, above, that the evidence of the accused cannot justifiably be rejected as false beyond reasonable doubt, the only issue remaining is whether the magistrate is correct in the legal conclusion to which he came that the accused’s entry into the house of the complainant constituted the commission of the offence, even if he was invited by the complainant, because her ‘invitation cannot overrule the court order’.

[14] Section 17 of the Domestic Violence Act provides (to the extent relevant to these proceedings): ‘Notwithstanding the provisions of any other law, any person who(a) contravenes any prohibition, condition, obligation or order imposed in terms of section 7; (b) … (c) … (d) … is guilty of an offence and liable on conviction in the case of an offence referred to in paragraph (a) to a fine or imprisonment for a period not exceeding five years or to both such fine and such imprisonment … .’
2 3

S v Baloyi 2000 (1) SACR 81 (CC), para 11. See the wide range of relationships – current, past and even perceived – that are domestic relationships as defined in s 1 of the Act.


[15] The offence created by s 17(a) is a statutory species of contempt of court. It has been held that its predecessor, s 6(a) of the Prevention of Family Violence Act 133 of 1993, required, for a conviction, proof of wilfulness on the part of an accused.4 In the same way that common law contempt of court and the present s 17(a)’s predecessor required wilfulness, it is my view that s 17(a) does too. In order for an accused to be convicted of a contravention of this section, then, it is necessary for the State to prove beyond reasonable doubt that he or she wilfully (or intentionally) and unlawfully contravened a ‘prohibition, condition, obligation or order imposed in terms of s 7’.5 (This conclusion is strengthened by the fact that the State considers this to be the position too, (as does the magistrate): the charge sheet speaks of the accused ‘wrongfully and wilfully’ failing to comply with the terms of a s 7 order.)

[16] Once it is accepted that intention and unlawfulness are elements of the offence, the fact that the complainant invited the accused into her house becomes relevant. The magistrate’s view that the complainant cannot suspend the operation of the order is not correct. When she invited the accused to her house to demand money for groceries, she waived reliance on the order.6 That rendered the presence of the accused on her premises lawful.7 Secondly, the accused having entered her premises with her consent, it cannot be said that the accused had the necessary mens rea to commit the offence. That being so, the conviction was irregular and cannot stand.

S v Chaplin 1995 (2) SACR 490 (C), 494h. See Milton and Cowling South African Criminal Law and Procedure (Vol III: Statutory Offences) (2 ed) Cape Town, Juta and Co: 1988, chapter M2, entitled ‘Domestic Violence’. Carnelley, the author of this chapter, submits that the elements of the offence created by s 17(a) of the Act are ‘(i) protection order (ii) contravention of the order (iii) unlawfulness (iv) mens rea’ (at para M2-11). 6 Note that the purpose of an interdict issued in terms of s 5 (read with s 6 and s 7) of the Act is to prevent domestic violence, which is defined in s 1 of the Act to include ‘(i) entry into the complainant’s residence without consent, where the parties do not share the same residence … where such conduct harms or may cause imminent harm to the safety, health or well-being of the complainant’. 7 See Carnelley in Milton and Cowling, op cit, para M2-11(iii) who says of the unlawfulness element of the offence: ‘As a general proposition it is suggested that unlawfulness may be excluded in certain incidences of, for example, necessity and consent’.


8 [17] It is ordered that the accused’s conviction, and the consequent sentence imposed on him, are set aside.

_______________________ C. PLASKET JUDGE OF THE HIGH COURT

I agree.

________________________ J.C. FRONEMAN JUDGE OF THE HIGH COURT

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