Bad brother loses appeal

Bad brother loses appeal. Picture: File

Bad brother loses appeal. Picture: File

Published Jan 31, 2024


A brother who appealed against a final domestic violence interdict granted against him in favour of his sister, appealed against the order arguing that the Domestic Violence Act does not have a bearing on him as he and his sister are not in a “domestic relationship”.

The brother, only identified in the judgment by his initials, turned to the Gauteng High Court, Johannesburg, against the ruling of the magistrate who issued a final protection order.

The grounds of appeal were that the magistrate erred in finding that the brother, 59, and sister, 56, are in a "domestic relationship" as defined in the act.

The sister claimed that her brother made numerous threats towards her and her adult daughter. This included serious threats of having her murdered and enlisting the assistance of third parties to intimidate her daughter through phone calls, which the brother admitted.

The sister also alleged that her brother had sexually molested her by touching her inappropriately in her youth when she was about 12 years old and he was about 15.

She alleged that he would continuously spy on her and would watch her bath through a high window looking into their bathroom. The sister asserted that the pattern and history of abuse have been perpetuated into adulthood.

She also described instances of threats and intimidation. According to her, her brother and another sibling at one stage met to discuss their parents’ well-being and care. The sister said that her brother had, in the presence of their other sibling, stated that he had “ordered a hit on her life”.

The woman said her brother went on to tell them that his instructions were to have her killed in her car in the absence of her children.

It emerged that the family feud involved money due to her late husband's estate from a deli business -- owned in equal shares by her husband and her brother.

She said she understood his threats of taking a "hit" on her life to mean murder because she was trying to take his business away from him.

She described another event when they met to discuss their parents’ future. This time he became agitated yet again and stood up and started walking out the door and out of the house.

She followed him, and asked him to calm down so that they could finish the discussion regarding their parents and because they still needed to discuss the monies due to her husband’s estate from their business.

The sister said her brother pushed his face right into hers telling her he was going to “f…” her up and would have her killed.

According to her, her brother also told her that he had a drone outside her garden watching her and the children.

All this got too much for the sister and she went to court to obtain a domestic violence interdict against him.

In opposing the application, the brother told the court that he had no intention of dealing with his sister’s claims on merit but he denied any wrongdoing.

In now appealing against the interdict, he told the high court that the act did not permit his sister to obtain the order against him.

He argued that she had misconstrued her remedy and that the dispute between them was really of a commercial nature and not domestic violence that ought to be dealt with under the act.

Judge Thifhelimbilu Mudau said there is no denying that the primary objective of the act is to provide victims of domestic violence with an effective, uncomplicated, and swift legal remedy.

It achieves this by providing for a simplified procedure for protection order applications, endowing the courts with a wide discretion.

While the act is gender-neutral, the undisputed reality remains that domestic violence is "systemic, pervasive and overwhelmingly gender-specific" and "reflects and reinforces patriarchal domination and does so in a particularly brutal form".

The judge said it is still the most vulnerable members of society, namely women and children, who are invariably the victims of domestic violence and thus the beneficiaries of the protection accorded by the act.

He said the conduct complained of by the sister-- and which was not materially challenged by the brother -- fall within the definition of verbal, emotional, or psychological trauma as defined in the act.

The principal objective of granting an interdict (family or domestic violence) is not to solve domestic problems or impose punishments, but to provide a breathing-space to enable solutions to be found and to prevent future misconduct.

Thus, the magistrate correctly issued the final protection order, the judge said in turning down the appeal.

Pretoria News