- A family dispute after a mother’s death led her daughter to seek a protection order against her stepfather.
- The magistrate struck the matter from the roll when the daughter failed to appear in court.
- The High Court ruled the interim protection order should have been extended and set aside the proceedings after the order lapsed.
A family conflict erupted following the death of a mother in December 2024, prompting her daughter to seek protection from her stepfather.
Court records show that while the stepfather had been in a romantic relationship with the mother, they were never married and were not living together at the time of her death.
Just two weeks after her mother’s passing, on 18 December 2024, the daughter approached the Vuwani Magistrate’s Court for help. She described how tensions escalated after the funeral when the stepfather arrived at the family home with relatives and told her and her siblings to leave so that he could move in.
The daughter alleged that the stepfather would come to the house late at night with relatives and shout at them. She also said that, in the early hours of 16 December 2024, he arrived with an uncle around 1am and threatened to call the police if they did not leave.
In response, the magistrate issued an interim protection order under the Domestic Violence Act 116 of 1998, forbidding the stepfather from physically or psychologically abusing the daughter, from assaulting or threatening her, insulting her, or evicting her from her home. As is standard in protection order matters, the court also issued a warrant of arrest to be executed if the order was breached.
The stepfather was instructed to appear in court at a later date to show cause why the interim order should not be made final.
A missed court date changes the case
The matter later returned to court as part of the usual process to decide whether the interim protection order should become final. Records show that when the matter was called on 12 March 2025, the stepfather was present, but the daughter did not attend.
Instead of extending the interim protection order and postponing the case, the magistrate struck the matter from the roll. The next day, the daughter filed an affidavit explaining that she had missed court because she believed the hearing was scheduled for 13 March 2025.
The magistrate accepted her explanation and reinstated the case. Several months later, on 22 July 2025, both parties appeared in court again for the hearing.
Before any evidence could be heard, the stepfather’s lawyer raised a preliminary legal point. He argued that the interim protection order granted in December 2024 was no longer valid because it had not been extended when the daughter missed court in March. The magistrate then referred the matter to the High Court in Thohoyandou for review.
High Court finds procedure was not followed
In the High Court, Deputy Judge President MV Semenya explained that the Domestic Violence Act sets out strict rules for magistrates hearing protection order cases. “The provisions of Section 6 of the Domestic Violence Act are peremptory,” the judge said.
The judgment explains that when either the daughter or the stepfather fails to appear on the return date, the magistrate must extend the interim protection order and set a new court date. “The magistrate must extend the interim order in circumstances where the complainant or the respondent, or where both, fail to attend court,” the court stated.
Judge Semenya further explained that the Act does not allow a magistrate to remove such matters from the roll. “There is no provision for the striking of the matter off the roll,” the judgment says.
Interim protection order found to have lapsed
Because the magistrate failed to extend the interim protection order on 12 March 2025, the High Court found the order had lapsed. “The magistrate committed gross irregularity by failing to extend the interim protection order,” Judge Semenya wrote.
The court also made clear that once the interim protection order had lapsed, the case could not continue on that basis. “The interim order has therefore lapsed. It cannot be reinstated in the manner the magistrate did in this case.” For this reason, the High Court set aside the entire proceedings.
Daughter may still seek protection
Although the case has been set aside, the court emphasised that the daughter is not prevented from seeking protection again if she believes she needs it. “The proceedings stand to be set aside. The applicant may apply for another protection order, if she so desires,” the court said.
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