Hermanus magistrate messed up in domestic violence case, judges rule

The incompetence of a Western Cape magistrate has been flagged by two High Court judges who have set aside the conviction and effective two-year sentence imposed on a man who was accused of breaching a protection order. Illustration: Lisa Nelson

• The conviction and sentence of a man accused of domestic violence have been set aside by the Western Cape High Court because of a magistrate’s errors.
• Judges Mark Sher and Robert Henney said, should the convictions be allowed to stand, this would constitute an abject failure of justice.
• A Hermanus magistrate found Donovan Afrikaner guilty on hearsay evidence, and committed further irregularities.
• The judges ordered that their ruling be sent to the Chief Magistrate of Hermanus.

The incompetence of a Western Cape magistrate has been flagged by two High Court judges who have, in a domestic violence matter, set aside the conviction and effective two-year sentence imposed on a man who was accused of breaching a protection order.

To establish the man’s guilt, the unnamed Hermanus magistrate relied on the hearsay evidence of a relative who was not present when the alleged crimes were committed. Then the magistrate, after finding him guilty of the main charges, proceeded to try him on the alternative counts.

The evidence suggested that Donovan Afrikaner had contravened the protection order, but because of these “numerous and egregious irregularities”, Western Cape High Court judges Mark Sher (who penned the judgment) and Robert Henney set aside the conviction and the sentence.

The court also ordered that a copy of the judgment be sent to the Chief Magistrate in Hermanus.

The matter, which came before the judges in an automatic review, was dealt with in an extraordinary and highly irregular way in the magistrates’ court, Judge Sher said.

On the facts, the judge said Afrikaner had been arrested in September 2023 for breaching the protection order which had been granted in favour of his mother in terms of the Domestic Violence Act (DVA) the previous year. The order prohibited him from entering and damaging his mother’s property.

Afrikaner indicated at his trial that he would represent himself.

In the first charge, he was accused of contravening the DVA in that he had allegedly entered his mother’s house and broken her kettle and window. In the alternative charge he was charged with malicious damage to property.

The second charge related to an alleged assault on his sister on the same day, which attracts a minimum sentence if the victim is a child under the age of 16.

The judges said this charge was nonsensical because it alleged Afrikaner’s sister was under the age of 16, but the charge sheet stated “to wit 17 at the time”.

This meant the charge was not competent and should not have been proceeded with. The alternative charge was one of common law assault with intent to do grievous bodily harm.

The magistrate then committed various procedural irregularities.

The prosecutor had called Afrikaner’s mother. It was evident from the outset that she was not at home at the time of the alleged crimes. She had repeated what her daughter and a neighbour had told her. In spite of this being hearsay, “the magistrate simply allowed it to go on without demur”, Judge Sher said.

The magistrate did not advise Afrikaner that he was required, in cross-examination, to put his version to his mother in relation to what happened with his sister.

Neither the daughter nor the neighbour gave evidence, meaning the mother’s evidence should not have been admitted.

But the magistrate went on to convict Afrikaner of the main count in charge one, of breaching the protection order.

Bizarrely, Judge Sher said, the magistrate then asked Afrikaner to plead again on the alternative count of malicious damage to property, “which was wholly inappropriate”.

Afrikaner pleaded not guilty. The magistrate then began to question him. He admitted to hitting his sister. He said she had then thrown the kettle at him.

The magistrate then directed the prosecutor to lead evidence. The prosecutor recalled the mother, even though she had no personal or first-hand knowledge of the events that gave rise to either charge.

The magistrate then found Afrikaner not guilty of malicious damage to property.

On the main count in the second charge, assault, the magistrate questioned Afrikaner again. In response, Afrikaner largely repeated what he had previously said – that he was at his mother’s house, he became embroiled in an argument with his sister, he struck her on the neck. This time he also said he had kicked her in the back, after which she threw the kettle at him. He said he knew it was wrong for him to hit her but he had not caused her any injuries.

“Upon completion, the magistrate proceeded to deliver yet another judgment, which was all of a paragraph long, in which he held that he was guilty,” Judge Sher said.

This was irregular, because the charge of assault on a minor, as formulated, was defective and the evidence did not substantiate it.

While the transcript showed that the magistrate did not make any determination in open court on the alternative charge of grievous bodily harm, the charge sheet showed that he had also found Afrikaner guilty of that, and had then “immediately corrected by drawing a line through it”. Judge Sher said the magistrate had no power to do this and he should have referred it to the High Court.

Judge Sher said the magistrate had conducted the trial in a haphazard manner, and had used inadmissible evidence to convict Afrikaner.

“This is a most unfortunate state of affairs given the admissions which were made by the accused during the course of repeated questioning … but in my view the proceedings as a whole were vitiated by the irregularities,” said Judge Sher.

Should the convictions be allowed to stand, “it would constitute an abject failure of justice”, the judge said.

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