By Auren Freitas dos Santos
In this article we discuss a High Court judgment which highlighted a significant legal debate concerning the jurisdiction of the Magistrates’ Court in matters involving harassment within community schemes.
The case in question involves an appeal against a decision handed down by the Magistrates’ Court, which dismissed an application for a final protection order on the basis that the dispute should have been adjudicated under the Community Schemes Ombud Services Act (“CSOS Act”).
Background of the Case
On 1 February 2023, the appellant obtained an interim protection order against the respondent in terms of Section 3(2) of the Protection from Harassment Act (“the Harassment Act”). The interim order restrained the respondent from engaging in abusive, threatening, or harassing conduct towards the appellant. This order was based on sworn statements, a witness account, and a medical report substantiating injuries sustained by the appellant.
The matter was set for a return date on 21 February 2023 and later heard on 15 May 2023. At the hearing, the respondent raised a point in limine, arguing that the application should have been brought and adjudicated in terms of Section 39(2)(a) of the CSOS Act and not in terms of the Harassment Act. The Magistrates’ Court agreed and dismissed the application for a final protection order, ruling that the dispute was premature for its consideration.
High Court Appeal
The appellant challenged this ruling on three primary grounds:
- The Magistrates’ Court erred in disregarding the mandatory provisions of Section 10(5) of the Harassment Act, which prohibit the refusal of protection orders merely because other legal remedies exist.
- The court made findings on jurisdictional matters that were not before it.
- The Magistrates’ Court has concurrent jurisdiction to hear harassment matters regardless of the CSOS Act.
These arguments raise a fundamental question: does the CSOS Act exclude the Magistrates’ Court’s jurisdiction in harassment cases involving residents of community schemes?
Legal Analysis and Findings
The High Court examined whether the CSOS Act explicitly ousts the jurisdiction of the Magistrates’ Court. The Judge held that exclusion of jurisdiction must be a clear legislative intent. In the absence of explicit statutory language barring the Magistrates’ Court from hearing harassment matters, the court retains its jurisdiction.
The Harassment Act aims to afford victims of harassment effective legal remedies, as emphasised in its preamble, which aligns with the constitutional rights to dignity, privacy, and security. Section 10(5) of the Harassment Act mandates that a court cannot refuse to issue a protection order merely because alternative remedies exist. The Magistrates’ Court’s dismissal on the grounds that the CSOS Act provides an alternative remedy contradicted this statutory provision.
Furthermore, Section 38 of the Constitution allows any person to approach a competent court when their rights are threatened. This reinforces the Magistrates’ Court’s jurisdiction to hear harassment matters, irrespective of whether the parties reside in a community scheme.
Distinguishing Between Harassment and Community Scheme Disputes
The Court held that the purpose of CSOS Act read with the definition of community scheme, clearly indicates that the disputes to be dealt with under the CSOS Act, are those which concern the well-being of a community scheme as opposed to individuals’ dispute. This view finds support from the fact that the CSOS Act makes no mention of the word “harassment”. The Harassment Act is specifically designed to protect individuals from direct and indirect harmful conduct, including physical, verbal, and electronic harassment.
The Court underscored that Section 9(2) of the Harassment Act compels the Magistrates’ Court to hear a matter where a respondent appears and opposes the confirmation of an interim protection order. By refusing to adjudicate the matter, the Magistrates’ Court failed to act in accordance with this provision.
Conclusion and Judgment
The High Court ruled in favour of the appellant, holding that the Magistrates’ Court misdirected itself by dismissing the application for a final protection order. The appeal was upheld and the matter was referred back to the Magistrates’ Court for a hearing, confirming that the Magistrates’ Court retains jurisdiction in harassment matters, even within the context of community schemes.
This judgment clarifies that the CSOS Act does not override the Harassment Act in cases of personal safety and protection. It reinforces the principle that victims of harassment have a right to seek relief through the Magistrates’ Court, ensuring that their fundamental rights are upheld without procedural barriers.
Residents in a community scheme should be aware that they have the right to protect themselves from harassment under the Harassment Act. A protection order provides a direct and effective legal remedy without the need to approach the Community Schemes Ombud Service (CSOS), which does not have the jurisdiction to grant such orders. If you are experiencing harassment in your community scheme and need assistance obtaining a protection order under the Harassment Act, please contact us at info@theadvisory.co.za for a no-obligation quote.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Reach out to him at info@theadvisory.co.za should you require any assistance with harassment in your community scheme.
