By Yashin Bridgemohan
Section 2 of the Domestic Violence Act 116 of 1998 (the Act) states:
‘Any member of the South African Police Service must, at the scene of an incident of domestic violence or as soon thereafter as is reasonably possible, or when the incident of domestic violence is reported –
(a) render such assistance to the complainant as may be required in the circumstances, including assisting or making arrangements for the complainant to find a suitable shelter and to obtain medical treatment;
(b) if it is reasonably possible to do so, hand a notice containing information as prescribed to the complainant in the official language of the complainant’s choice; and
(c) if it is reasonably possible to do so, explain to the complainant the content of such notice in the prescribed manner, including the remedies at his or her disposal in terms of this Act and the right to lodge a criminal complaint, if applicable.’
Section 8(1)(a) of the Act provides as follows:
‘Whenever a court issues a protection order, the court must make an order –
(a) authorising the issue of a warrant for the arrest for the respondent, in the prescribed form.’
Case law: The Khanyile matter
In the case of Khanyile v Minister of Safety and Security and Another 2012 (2) SACR 238 (KZD), an interim protection order was granted against the plaintiff, Khanyile, on 5 January 2007. The complainant was provided with a certified copy of the protection order and warrant of arrest in accordance with s 8(1)(a) on 25 January 2007.
The next day the complainant advised the second defendant (an inspector), that she was threatened by the plaintiff in contravention of the protection order and provided him with the warrant of arrest. No interim protection order, any affidavit or statement was attached to the warrant of arrest.
The second defendant then executed the warrant and arrested the plaintiff at his home at around 14:30 pm. The plaintiff was detained until 19:00 pm on 27 January 2007, when he was granted bail.
The plaintiff then instituted action for unlawful arrest and detention against the first defendant (the Minister of Safety and Security) and the second defendant.
Issues before the court
The basis of the plaintiff’s case was that the warrant for his arrest issued in terms of s 8(1)(a) of the Act and issued for the violation of an interim protection order was invalid,
as the complainant omitted to make her statement and hence there was no reason for his arrest.
Judgment
The defendants conceded that the arrest of the plaintiff was made before the statement in question was made. However, the defendants argued that ‘the warrant was not invalid when executed and that the arrest and detention of the plaintiff was lawful’.
Murugasen J noted the case of Seria v The Minister of Safety and Security and Others 2005 (5) SA 130 at 144 E – G, where Meer J held that: ‘The validity of a warrant of arrest lay in the authority for its issue being ordered by a court under section 8(1)(a) of the Act simultaneously with the issue of a protection order. In the case of the warrant in question being undated and contrary to the regulations and prescribed form, whilst a serious omission, did not detract from its validity.’
The court noted the second defendant had not been provided with a warrant of arrest in accordance with the Act previously or received any training on the implementation of the provisions of the Act, particularly the execution of a warrant of arrest issued in terms of the Act but as an experienced member of the South African Police Service (SAPS), he should have known that the arrest of an individual is an infringement of the arrestee’s constitutional rights to freedom and security of person as enshrined in s 12 of the Constitution and ‘a warrant should therefore not be executed in haste and without due consideration of all the pertinent facts, particularly as there was only an allegation, not conclusive proof, that the order had been breached’ (at para 33).
The court’s decision
Murugasen J found that the first defendant was liable for the plaintiff’s claim as the second defendant was acting in the course and scope of his employment when he arrested the plaintiff hence, the second defendant could not be penalised with liability. Accordingly an order was made that judgment be granted for the plaintiff against the first defendant for damages, which the plaintiff can prove or agrees to.
The Naidoo matter
In the case of Naidoo v Minister of Police and Others [2015] 4 All SA 609 (SCA), the appellant, Naidoo, was assaulted by her then husband on 12 April 2010. During the altercation the appellant was pushed by her husband and, as she fell, she hit her head against the kitchen door. As a result of the incident she suffered a concussion and was unconscious for a period of time. She was taken to hospital by paramedics and she was discharged the next day.
On 14 April 2010 she went to her local police station to lay a charge of assault under the Act. The police officer who dealt with the appellant advised her that she required a protection order from the magistrate’s court before they could provide assistance to her.
On visiting the magistrate’s court the appellant was advised that a protection order was not mandatory for a charge of assault to be opened. She was further advised that if she desired she could apply for a protection order after opening a charge.
On returning to the police station, the appellant dealt with the same officer who advised her at the charge office and she was still not provided with assistance. The matter had instead taken an unfortunate turn.
The officer had then passed the matter on to the second respondent, an inspector at the station. The second respondent requested the appellant to furnish him with her then husband’s telephone numbers. On contacting him, the second respondent requested that he come to the charge office and advised the appellant to wait for him to arrive.
On her then husband’s arrival the second respondent spoke to him on the side, after which the second respondent requested the parties to try and resolve the matter between themselves. This proved futile.
The second respondent then advised the appellant that her husband would lay a similar charge of assault against her, if she persisted with her charge. The second respondent then requested both the appellant and her husband to write out their statements. They both were then arrested, charged and detained.
The next day, the appellant was assaulted by a police officer, the third respondent who threw her into a police van in the course of transporting her to the magistrate’s court.
The appellant suffered physical injuries comprising soft tissue injuries in the right arm and right leg with severe swelling. During her attendance at the magistrate’s court, the charges against her were withdrawn by the prosecutor.
The appellant instituted action for damages against the Minister of Police as the first defendant and the officials connected with her incident at the Gauteng Local Division of the High Court.
The foundation of the appellant’s case was that the officials involved were acting in the course and within the scope of their employment as servants of the first defendant and that the first defendant was vicariously liable for their wrongful actions. The trial came before Mbongwe AJ who, at its conclusion, dismissed the appellant’s action with costs. The appellant then pursued the matter in the Supreme Court of Appeal (SCA) after being refused leave to appeal by the court a quo.
Issues before the SCA
The issues before the SCA were whether the first respondent was vicariously liable for the conduct of his employees and needed to compensate the appellant on the following three grounds –
SCA’s judgment
Claim one
Petse J found that what the appellant experienced on 14 April 2010 at the hands of members of SAPS constituted a breach of the legal duty that those members owed to her.
The SCA held that: ‘[T]he emotional harm, humiliation and trauma that the appellant was subjected to is the antithesis of what the Act, the Regulations and the National Instruction – with their extensive remedies – seek to accomplish’ (at para 33).
Claim two
The SCA accepted that an arrest will be irrational and consequently unlawful if the arrestor exercised his discretion to arrest for a purpose not contemplated by law (at para 41).
The court noted that the second respondent’s discretion to arrest the appellant as he saw fit was not within the bounds of rationality (at para 42).
The court further found that the counter charge made by the appellant’s then husband was instigated by the second respondent as a ruse in order to cajole her into withdrawing the charge made against her then husband (at para 42).
Claim three
The court a quo had held that the appellant was not entitled to succeed with this claim as the member of the SAPS responsible for the assault had passed away by the time that the matter had come to trial and she had failed to substitute his estate. Further that she had signed a statement withdrawing the charges against her husband, which amounted to a waiver of her claim against the respondents.
Counsel for the first respondent accepted that the first respondent is vicariously liable for the wrongful acts of his servants, however, denied liability on the part of the minister due to the fact the appellant had withdrawn her statement based on the reasoning of the court a quo.
The court found this contention lacked merit (at para 46). This was due to the fact that when the appellant signed her withdrawal of charge statement, she had no discussion with the second respondent that she was contemplating instituting action for delictual damages against the respondents.
Secondly, when the charge against the appellant was withdrawn by the prosecution, this was to allow the second respondent, in his capacity as an investigating officer, time to proceed with further investigations. As such, the second respondent sought a statement from the appellant’s daughter who declined to furnish one.
Thirdly, once the second respondent accepted that there was no possibility of the appellant’s daughter providing him with a statement, he turned to the appellant who advised him that she and her then husband had decided to withdraw their respective charges against one another.
Lastly, was the text of the statement itself. What was withdrawn was ‘the case against the accused’. It cannot reasonably be inferred that the respondents were the accused referred to therein. This was because the appellant had laid no charge against them, nor was the second respondent investigating any charge against the respondents.
SCA’s decision
In the concurring judgment the appeal of the appellant was upheld on all three claims and the SCA replaced the order made by the court a quo with the following order:
‘The first defendant is ordered to pay the following sums to the plaintiff:
(a) the amount of R 200 000 in respect of claim one;
(b) the amount of R 70 000 in respect of claim two;
(c) the amount of R 10 000 in respect of claim three.’
Conclusion
Both judgments discussed highlight the importance of the duty of police officials to comply with the provisions of ss 2 and 8(1)(a) of the Act. Where officials fail to comply with said mentioned provisions, vicarious liability may arise depending on the facts of each case.
Yashin Bridgemohan LLB (UKZN) is an attorney at Yashin Bridgemohan Attorney in Pietermaritzburg.
This article was first published in De Rebus in 2016 (July) DR 40.
