Louis Case Reports

HARASSMENT PROTECTION ORDER
Pottas v Plath [2022] ZAGPJHC 223 

The applicant (an attorney) applied ex parte in the magistrate’s court for a protection order against harassment in terms of s 2(1) of the Protection from Harassment Act 17 of 2011. The application was accompanied by a supporting affidavit detailing alleged harassment by numerous phone calls each day, with 167 calls on one of the days. An additional magistrate wrote a query on the court file containing the application, “I don’t understand why the applicant cannot resolve the matter by simply blocking the Respondent’s number. Please explain.” 

The applicant responded, but did not answer the magistrate’s query, instead advancing contentions why the query was a misdirection, such as that there was no duty on a victim to mitigate or stop the harassing conduct of a perpetrator. The magistrate dismissed the application on the basis that the applicant refused to answer the query.

Du Bruyn AJ discusses the provisions in the Act and notes that that a court has two options upon considering an application for a protection order against harassment. If the court is satisfied that there is prima facie evidence regarding the issues contemplated in the Act, an interim protection order must be issued against the respondent and the process provided for must be followed. Alternatively, if the court does not issue an interim protection order, the process provided for in s 3(4) of the Act must be followed, for service of documents on the respondent. The magistrate erred by dismissing the application without it having been considered on a return date. 

The appeal is upheld and the order of the magistrate set aside. The application is remitted to be considered de novo by another magistrate. (Malindi J concurred.)

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RAF CLAIM – SUICIDE AFTER ACCIDENT
Maloney v Road Accident Fund [2022] ZAWCHC 51

In 2014 Mr Maloney suffered orthopaedic injuries after a collision between his motorcycle and another motor vehicle. Two years and five months later, he took his own life, by shooting himself at his home. The deceased’s suicide occurred before the finalisation of his claim against the RAF. His wife then issued summons against the RAF, for loss of support in her personal capacity, as well as on behalf of her two children. It was contended that the deceased’s suicide was causally, factually and legally related to the injuries he suffered from the accident.

Nziweni AJ discusses the testimony of the various medical experts on the deceased’s psychological distress and his anger and frustration with his physical restrictions; whether the suicide was a direct or proximate result of the accident; that the deceased did not exhibit enough symptoms to warrant a Diagnostic and Statistical Manual of Mental Disorders Five (DSM-5) assessment; that there was no evidence that after the accident the deceased was diagnosed as suffering from a mental defect, or any other psychiatric diagnosis; and that the deceased was never diagnosed with depression whilst he was alive. The plaintiff’s claim is dismissed.

The court was critical of some of the evidence of the medical experts, noting that two appeared to have buckled under the pressure of litigation; that the methodology underpinning their conclusions was not clear; that they did not rely on tangible evidence to come to their conclusions; and that one expert was convinced by the plaintiff, who was a layperson.

[103] The courts should always be astute to distinguish between reliable expert opinion and the subjective belief of an expert.  When it is provided with an expert opinion, the court should not simply accept the ipse dixit opinion, but should make sure that the opinion is reliable by scrutinising in detail the expert’s reasoning and the evidence.

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GUIDELINES FOR SURROGACY AGREEMENTS
Ex Parte: JCR [2022] ZAGPPHC 209 

The applicants approached the court wishing to enter into a surrogacy agreement. They are financially stable and have a 10-month old child born from the previous surrogate arrangement. They are a stable family unit and the court was satisfied that they are able to care for a second child financially, emotionally, physically and educationally. The court notes that the surrogate parents are married and have two children of their own, aged 10 and 7. If the court sanctions this surrogacy, it will be this mother’s fourth surrogate pregnancy.

Neukircher J discusses the concerns around the surrogate mother’s own children; that they are confronted by their mother’s pregnancy which does not end in a child being brought home from the hospital to join their own family; and whether a mechanism should be put in place for children of surrogate parents to receive the necessary counselling and therapy to prepare them for the inevitable process that follows. 

The court finds that where there are children born to the surrogate it is in the best interests of those children for purposes of confirmation of the agreement that they be assessed. Were it to be found that the surrogacy may have a harmful effect on their psychological well-being, this would be a factor that a court would be able to weigh up in the consideration of whether the agreement should be confirmed or not. At para [36] the court gives directions as to the information that should be placed before a court to safeguard the interests of the surrogate as well as any existing children of the commissioning parents and the surrogate.

The court also notes that as to the health of the surrogate mother, judges are often confronted with generic reports by experts which do not really assist in any way in determining whether the surrogate is physically healthy enough to carry a child on, sometimes, multiple occasions.

The surrogate motherhood agreement is confirmed. No artificial fertilisation on the third applicant may take place after the lapse of 18 months from the date of this order.

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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