Tsobo v Tsobo

The appellant (husband) and respondent (wife) were married but living separately at the time of the application - the appellant in Pretoria and the respondent in Bloemfontein. They had one minor child aged two. The appellant brought an application for a protection order against the respondent in the Bloemfontein Magistrate's Court on 3 June 2019 under the Domestic Violence Act 116 of 1998. The application was based on SMSes sent by the respondent between 11 December 2017 and 28 April 2019, which the appellant alleged were provocative, verbally abusive and vulgar. He also alleged she had verbally abused him when he called to speak to their son and had alienated him from the child. The parties were involved in contested divorce proceedings and Rule 43 proceedings. The respondent had been granted primary care of the child, which appeared to have aggrieved the appellant. The magistrate's court dismissed the application, finding the appellant failed to establish that the respondent had committed any act of domestic violence. The appellant appealed to the Free State High Court, which also dismissed the appeal. The parties divorced in October 2020. The appeal to the Supreme Court of Appeal was with special leave.

• Whether the contents of SMSes sent by the respondent constituted emotional, verbal or psychological abuse as defined in sections 1(vii)(c) and (f) of the Domestic Violence Act 116 of 1998
• Whether the SMSes constituted 'repeated insults, ridicule or name calling' as required by section 1(xi)(a) of the Act
• Whether the appellant established on a balance of probabilities that the respondent committed an act of domestic violence
• What constitutes a 'pattern of degrading or humiliating conduct' and 'harassment' under the Domestic Violence Act

The appeal was dismissed with costs.

To obtain a protection order under the Domestic Violence Act 116 of 1998, an applicant must establish on a balance of probabilities that the respondent has committed or is committing an act of domestic violence. For communications to constitute emotional, verbal or psychological abuse under section 1(xi) of the Act, there must be 'a pattern of degrading or humiliating conduct' including 'repeated insults, ridicule or name calling'. Isolated, sporadic communications sent over irregular intervals, even if hostile or antagonistic in tone, do not constitute the required pattern of repeated conduct necessary to amount to domestic violence. The context in which communications are made (such as during contested divorce proceedings) must be considered when determining whether they constitute abuse. An applicant seeking an interim protection order under section 5(2) must satisfy the court that there is prima facie evidence of domestic violence and that undue hardship may be suffered if a protection order is not issued immediately.

The Court made important observations about the primary objective of the Domestic Violence Act being to provide victims with an effective, uncomplicated and swift legal remedy through simplified procedures and wide judicial discretion. The Court acknowledged that while the Act is gender-neutral, the undisputed reality is that domestic violence is 'systemic, pervasive and overwhelmingly gender-specific' and 'reflects and reinforces patriarchal domination and does so in a particularly brutal form', citing S v Baloyi and Others 2000 (2) SA 425 (CC). The most vulnerable members of society, namely women and children, are invariably the victims of domestic violence and thus the beneficiaries of the Act's protection. The Court observed that the facts of this case vividly demonstrate how the provisions designed to protect vulnerable sectors of society from domestic violence are often abused as a tool of harassment and to reinforce patriarchal domination. The Court also noted that the appellant's conduct was worthy of sanction by way of a punitive costs order, but refrained from making such an order because the respondent had not been represented in the High Court and did not ask for punitive costs in the Supreme Court of Appeal, and it would be unfair to burden the appellant with such costs without the issue having been broached during the hearing.

This case is significant in South African domestic violence jurisprudence as it provides important guidance on what constitutes emotional, verbal and psychological abuse under the Domestic Violence Act 116 of 1998. It demonstrates that the courts will carefully scrutinize applications for protection orders and will not grant relief based on communications that, while hostile or antagonistic in the context of divorce proceedings, do not meet the statutory requirements for domestic violence. The judgment serves as a warning against abuse of the domestic violence protection order mechanism as a tool of harassment. The case also highlights the gender-specific nature of domestic violence, acknowledging that while the Act is gender-neutral, it is designed primarily to protect vulnerable members of society (women and children), and the very legal instrument designed for their protection should not be abused as a tool of harassment to reinforce patriarchal domination. It establishes that there must be a pattern of repeated conduct, not merely isolated or sporadic communications, to constitute domestic violence.