Hello,I am applying for a protection ord...

Asked by nand400 on 23-05-2020 12:38:29
Question posted in the General Law category relating to Western Cape
Question value: R 300.00

Hello,

I am applying for a protection order against my ex boyfriend and filled out the form. It was hacked, either from my email, the lawyers email or from my phone - I am not sure. It was basically stolen. I did not submit the application at court and I had decided to send a cease and desist letter instead. 

The protection order form was seen by my ex and it was sent to his friends/family (possibly employer). He is now threatening me with defamation, since in the protection order I listed and explained in detail all the physical assault, sexual assualt and blackmail I was subjected to. I did not send it nor do I know who did. From what I have read, he can lay crimimal charges against me for accusing him of rape. 

Can he do this?

What can I do to protect myself? 

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Answer to the Question

Posted by Att. Patrick on 23-05-2020 13:38:14

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Wow, I'm sorry for what you are going through. It can't be easy.

You really need to try work out how this form was hacked, or your email hacked, or how it was all sent to your ex and his family and employer. Did you send it to them, or did you send the form only to your ex?

It makes a big difference if you are talking about a possible defamation claim.

Defamation is where you make a statement to a third party about somebody, and that statement makes the third party think less about this somebody, and the statement is made with the intention of harming this somebody's reputation.

There are various defences: truth or fair comment

If you only sent the form or the cease and desist letter to your ex, and he sent it onwards, that is NOT defamation.

Only if you send the form or the cease and desist letter to all of these people could it be considered to be defamation.

The thing is, it has happened. You therefore can't "protect" yourself from charges. You will just need to deal with the charges.

Also, it is NOT criminal charges. Because what you did is not a crime.

The best thing he has is to sue you for damages as a result of the defamation. It you Google Zuma and Hanakom (about the apartheid spy issue) you will see what I'm talking about. 

Your ex will need to prove all of the elements of defamation. You will be entitled to defend yourself. Your ex will also need to prove a monetary value that he has been hurt by - which is REALLY HARD. And then a court will make a finding. 

He can't complain about defamation if those allegations are contained in a protection order application! Because you need to be truthful in the context of being in front of a court.   But if you sent the protection order to a third party, that might be an issue....

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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Information provided by client

Thank you Patrick.

So I did not send anything to my ex. The lawyer only sent a Cease and desist letter.

The Protection Application form is saved on my phone and my email. I wrote it out a few weeks ago but did nothing with it.
It was taken from me (I don't know how) and it was sent to one of his friends from an unknown number on Whatsapp and an unknown email address, and then the friend is the one who forwarded it.
However, my ex is claiming that I am the one who sent it to defame him. Would he need to prove I sent it? Or would I need to prove to prove somehow that I didn't send it?

Thanks for the Zuma and Hanakom info.
Sorry to ask this again, but from what I understood, if you accuse someone of serious criminal acts publicly - they can lay a criminal charge on you. And in the protection order, I stated that he raped me and physically assaulted me and blackmailed me. These are all statements I wrote down and I don't actually have strong evidence for, which is why I opted for the Cease and Desist letter.

I don't know what options I have now, everything has somehow turned around against me. If he does lay a defamation charge, would I have to go back look for evidence for all the statements I made and prove they are facts? Does he have grounds to lay this charge in the first place - since I wrote the protection order, but it wasn't sent by me?

Answer to the Question

Posted by Att. Patrick on 23-05-2020 15:10:37

A lawyer's cease and desist letter is NOT enough to create a damages claim for defamation.

If you did not send the Protection Application form yourself, and if somebody else sent it from your phone, that is NOT enough to create a damages claim for defamation. It NEEDS to have been YOU who sent it. 

If somebody stole it from your phone, and sent it to Person A, and then Person A sent it to Person B, that is also NOT enough to create a damages claim for defamation. 

You should tell your ex that you didn't send it, and that this is the first requirement that needs to be proved for a defamation claim, as advised by your lawyer, so he doesn't have a case!

Your ex would need to prove how it was sent, and who sent it. 

Q: If he does lay a defamation charge, would I have to go back look for evidence for all the statements I made and prove they are facts? --> Yes, you would need to prove your statements as being true. You could also prove your statements through oral testimony. 

Q: Does he have grounds to lay this charge in the first place - since I wrote the protection order, but it wasn't sent by me? --> He can try, but whether he will succeed or not is the real question! If you didn't sent it, he won't win. 

Information provided by client

Thank you.

Last questions:

"You could also prove your statements through oral testimony." --- What does this mean?
For example, I made the statement in the protection order that he punched me - I have no proof or evidence, what does it mean I can prove it through oral testimony?

"You should tell your ex that you didn't send it" --- Is it enough to simply deny that I was involved? Not sure what South African data/information laws are, would I need to open a case that my confidential data was stolen or my email was hacked?

Answer to the Question

Posted by Att. Patrick on 23-05-2020 17:34:59

Well, if he sues you for defamation, he will need to prove his case in court. In your defence, you will testify to the Judge. This is what I mean. You would testify (tell the Judge) what happened, and the context of the situation.

Yes, you would make your allegation verbally in court. The Judge would then have to decide whether he believes you or not. Obviously if you have medical records of the assault, or emails to friends when you said "He just punched me", that will help. 

Yes. Deny that you sent it out. 

You wouldn't need to prove that your account was hacked. That's almost impossible. 

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