- The High Court found that a former wife’s removal of a vehicle from her former husband’s workplace did not amount to domestic violence under the law.
- The court found there was no evidence of actual psychological harm or a reasonable fear of harm, both of which are required under the Domestic Violence Act.
- The protection order was set aside, even though the court acknowledged that the conduct might have raised other legal issues.
The High Court in Johannesburg ruled that a woman’s removal of a vehicle from her former husband’s workplace, while potentially inappropriate and possibly raising other legal questions, did not meet the legal threshold for domestic violence under South Africa’s Domestic Violence Act.
The court found no evidence that her actions caused actual psychological harm or created a reasonable fear of harm, both of which are necessary before a protection order can be granted.
The dispute took place against the backdrop of a strained marriage and an unresolved fight over property rights after the divorce. In earlier divorce proceedings, the Regional Court found that the couple’s marriage was out of community of property, but subject to the accrual system. That finding was being challenged late on appeal, but Judge SDJ Wilson said the High Court was bound to deal with the facts as the Regional Court had determined them.
Before the divorce proceedings were finalised, the former husband approached the District Court for protection after an incident on 18 October 2024. On that day, the former wife went to his workplace to collect a motor vehicle she owned, had bought for his use, continued to pay for, and still had a set of keys for.
The former husband was not at work. He had left the vehicle in the company parking lot before travelling to Cape Town. When the former wife arrived, she told security she was there to collect her car. Security staff contacted the former husband to let him know what was happening.
Police checked her ownership documents and were satisfied that she had the legal right to remove the vehicle. Some of the former husband’s personal belongings were removed from the car and handed to security for safekeeping before she drove away.
The former husband later claimed that the incident caused him psychological harm, made him fearful of his former wife, and left him worried that she might try to remove possessions from his home next. He also referred to two earlier incidents in 2019: one in which he alleged that an ornament had been thrown at him in their living room, and another involving a threat during a joint therapy session. However, these allegations played no role in the appeal because the District Court had declined to grant relief on them, and there was no cross-appeal.
The District Court nevertheless granted relief based on the workplace incident. It barred the former wife from returning to the former husband’s workplace without his consent and also prohibited her from entering his home until the divorce was finalised.
Legal requirements
Judge Wilson began by emphasising the importance of domestic violence protections in South Africa, describing the law as a crucial safeguard in a country facing an ongoing crisis of violence against women and children.
At the same time, Judge Wilson cautioned that the law’s broad protective reach must still be applied correctly. "This generous protective regime is open to inappropriate use," he said.
Judge Wilson explained that although the Act defines domestic violence broadly, conduct only falls within its reach if it causes actual physical or psychological harm, or creates a reasonable fear that such harm might occur.
No evidence of harm
Based on the facts presented, Judge Wilson found that the threshold had not been met.
Judge Wilson wrote, "The Magistrate simply stated that what the former wife did amounted to 'emotional and psychological abuse. That claim was made without pointing to any relevant evidence, and it cannot be sustained."
The court found that the former husband did not explain how he had been placed in fear, nor did he provide a factual basis for believing that his former wife would remove possessions from his home or otherwise harm him. Importantly, he was not present when the vehicle was collected.
Judge Wilson noted, "It is hard to see how the former husband could have feared for his own safety, since he was not present when the car was removed."
The judge accepted that removing the vehicle may have been seen as aggressive and could possibly have led to a separate complaint of spoliation. However, he noted that legal questions around possession might have been complicated because the former wife still had keys and both parties may have been joint possessors of the vehicle.
But Judge Wilson made it clear that possible unlawfulness in another legal context did not automatically mean the conduct amounted to domestic violence.
Judge Wilson said, "Be that as it may, the former wife’s conduct was not domestic violence. Without any evidence to that effect, the District Court was wrong to find that the former wife had harmed the former husband or that she had created the reasonable belief that she might harm him in future."
Protection order set aside
The High Court upheld the appeal, set aside the interim protection order, and dismissed the former husband’s domestic violence application. Each party was ordered to pay their own legal costs in both the High Court and the District Court.
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