About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 100
|
|
C.A.R v Minister of Safety and Security (7357/2012) [2017] ZAWCHC 100; 2017 (2) SACR 610 (WCC) (11 August 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
REPORTABLE
Case no: 7357/2012
In
the matter between:
C
A
R
Plaintiff
And
The
Minister of Safety and
Security
Defendant
Judgment –
11 August 2017
Le
Grange J:
[1]
The Plaintiff instituted an action for damages in the sum of R346 750
against the Defendant arising from the Plaintiff’s
arrest and
subsequent detention on 12 November 2009 at the local police station
in Mosselbay.
[2]
It is not in dispute that the Plaintiff’s arrest was carried
out by Constable Forbes (“Forbes”) a member of
the South
African Police Service (“SAPS”) under the provisions of
the Domestic Violence Act, No 116 of 1998 (“the
Act”) for
an alleged breach of a protection order. The said protection order
was granted against the Plaintiff in favour
of his former wife, G R
(“the Complainant”). The arrest was executed pursuant to
a warrant of arrest that was issued
in terms of s 8 of the Act.
[3]
The Plaintiff pleaded that his arrest and further detention by the
police members was unlawful and wrongful in that,
inter
alia
:
3.1 The police member(s) did not and
or could not have entertained a suspicion, based on reasonable
grounds, that the Plaintiff
had committed an offence;
3.2 The police member(s) did not and
or could not have entertained a suspicion, based on reasonable
grounds that the Complainant,
Mrs G R may have suffered imminent harm
as a result of the Plaintiff’s alleged breach of the protection
order issued in favour
of the Complainant;
3.3 The police
member(s) could and should have, instead of arresting the Plaintiff,
handed a written notice to the Plaintiff in
terms of s 8(4)(c) of the
Act, calling upon the Plaintiff to appear before a Court on the
charges preferred against the Plaintiff.
[4]
The Plaintiff further alleged that even if the police member(s) did
entertain any suspicion pleaded, then the police member(s)
neglected
to take relevant considerations into account when exercising their
discretion to arrest and detain the Plaintiff and
this failure
resulted in the Plaintiff’s arrest, detention and continued
detention to be unlawful, unreasonable and arbitrary.
[5] The Defendant admitted the arrest
but in defence pleaded that:
5.1 It was lawfully executed in terms
of a warrant of arrest that was duly authorised in terms of the Act.
5.2 The police
members received an affidavit that was deposed to by the Complainant
whereby she under oath recorded that the Plaintiff
was firstly, in
breach of a protection order and secondly, that the Plaintiff
threatened to burn down the Complainant’s house,
resulting in
the Plaintiff being lawfully arrested.
[6]
Advocates P H Mouton assisted by Ms L Ellis appeared for the
Plaintiff. Advocate L Viljoen appeared for the Defendant.
[7]
In the Plaintiff’s case, two witnesses testified. The first
witness was Ettiene Hugo Du Plessis (“Du Plessis”),
the
Deputy Sheriff of Mosselbay. The second witness was the Plaintiff.
The Defendant relied on the evidence of Forbes. A
statement by
Salomie Du Toit (“Du Toit”), the Sheriff of Mosselbay; an
e-mail from the Plaintiff that was forwarded
to the Complainant; and
a document containing a criminal profile of the Plaintiff at the
time; was in as exhibits by agreement
between the parties handed to
form part of the record.
[8]
Du Plessis’ evidence briefly stated was the following. He is
the Deputy Sheriff for the magisterial district of Mosselbay.
On 10
November 2009 he accompanied the Plaintiff to remove certain
household items from the Complainant’s premises. The Plaintiff
had a court order in his possession which seemed to have given him
authorisation to remove the household items. According to Du
Plessis,
the Complainant had a woman friend who assisted her as the
Complainant was apparently very emotional and cried a lot.
Du
Plessis testified that the Plaintiff and Complainant never spoke to
each other. The entire process of collecting the items according
to
Du Plessis was peaceful. He further testified that he did not hear
any threats that were uttered by the Plaintiff towards the
Complainant. Moreover, according to Du Plessis the police never
approached him for a statement to verify the allegations made by
the
Complainant.
[9]
The Plaintiff’s evidence in summary was the following. He
admitted forwarding an e-mail in the early hours of 11 November
2009
at about 2.41am to the Complainant. He however denied that he
threatened to physically harm the Complainant or to set her
and or
the house alight on 10 November 2009. According to the Plaintiff, he
wrote the e-mail as he was emotional and wanted to
rid himself of
these emotions. The Plaintiff was adamant that his intentions were
not to insult but conceded that the Complainant
may find the email
offensive. The Plaintiff denied that he misled Forbes as to his
whereabouts on the day in question. According
to the Plaintiff, on
the day of his arrest, he was on his way to Worcester where his
children reside. Whilst driving towards Worcester
he decided to turn
back to collect certain documents at his house. The Plaintiff denied
that he informed Forbes he was already
in Worcester. He admitted to
have telephonically contacted the Complainant on the morning before
his arrest. According to the Plaintiff,
Forbes arrived at his house
and arrested him. He was taken to the Mosselbay Police Station and
remained in custody until the following
morning. Despite Forbes’
objection to him being released on bail, the Plaintiff was released
by the magistrate on bail the
same day.
[10]
Forbes evidence in summary was the following. He joined the SAPS
during 2004. He held the rank of Constable until October 2013
when he
decided to leave the SAPS. According to Forbes, the Plaintiff
was not unknown to him as there had been instances
where the police
at times had to intervene where the Plaintiff was either a suspect or
a complainant. On 12 November 2009, Forbes
received the police docket
relating to the complaint that was made against the Plaintiff on the
previous day. After familiarising
himself with the content he
telephonically contacted the Complainant. During the conversation she
confirmed her complaint against
the Plaintiff and the statement made
to the police. She further reported that she was a nervous wreck,
could not sleep at her own
house, that the Plaintiff was at her house
during the night and peeped through her windows. According to Forbes,
the Complainant
further mentioned that she feared for her life and
pleaded that he must do something about the matter. He further
testified that
the Complainant reiterated the alleged threat the
Plaintiff made to burn the Complainant and her house down.
[11]
Forbes also expressed the view that having read the e-mail that was
part of the police docket, the content was definitely demeaning
and
insulting towards the Complainant. Forbes testified that he
contacted Du Toit and obtained an affidavit from her. Therein
Du Toit
recorded that the Plaintiff failed to inform her that there was a
protection order against him and that he was prohibited
in terms of
the said order to be on the premises of the Complainant. According to
Du Toit had she known the full facts she would
not have allowed Du
Plessis to have accompanied the Plaintiff. Du Toit further recorded
that the Plaintiff had misled her to get
access to the Complainant’s
house.
[12]
According to Forbes he thereafter made telephonic contact with the
Plaintiff, and inform him about the complaint against him.
He was
then informed by the Plaintiff that he was in Worcester with his
children. As the Plaintiff was not in the near vicinity
of the
Complainant, he decided to inform the Plaintiff to attend at his
offices on Monday, 16 November 2009 in order to take down
a warning
statement from him.
[13]
According to Forbes the Complainant soon thereafter contacted him and
stated that the Plaintiff phoned her as soon as he became
aware that
she had laid a charge and reported him to the police. She further
informed him that she feared for her life and that
the Plaintiff was
still in Mosselbay. The Complainant was also certain he lied about
his whereabouts.
[14]
Forbes then decided to go to the Plaintiff’s house and to his
surprise found him inside the house. Forbes testified
that he
confronted the Plaintiff. According to Forbes, the Plaintiff denied
that he said to him (Forbes) he was already in Worcester.
The
Plaintiff suggested he only mentioned that he was on his way to
Worcester.
[15]
Forbes was extensively cross-examined. The cross-examination
inter
alia
related to his method of investigating the complaint against the
Plaintiff, and his reasons for arresting him instead of handing
him a
warning to appear in court as contemplated in s 8(4)(c) of the Act.
The sting of the attack against Forbes’ evidence
was that he
failed to properly investigate the matter, acted on insufficient
information, in an unreasonable and irresponsible
manner arrested the
Plaintiff and similarly opposed the release of the Plaintiff on bail.
[16]
Forbes denied the suggestion that he acted unreasonably or
capriciously in arresting the Plaintiff. He furthermore denied that
he opposed the release of the Plaintiff on spurious grounds. Forbes
stated he merely made a suggestion to the prosecutor who then
formally opposed the release of the Plaintiff on bail. According to
Forbes, the Complainant was scared and afraid for her life.
Forbes was adamant the Complainant’s compliant was not without
merit as the Plaintiff breached the protection order when
he insulted
her in the e-mail and again when he made contact with her, after
being informed of the complaint against him. According
to Forbes, the
Complainant’s safety was important and there was a duty on the
police to protect her.
[17]
The nub of Mr. Mouton’s argument was that there was no evidence
to support the statement by the Complainant that there
was a threat
by the Plaintiff on 10 November 2009, to burn her and the house down.
Furthermore, according to counsel for the Plaintiff,
the only event
that could have triggered the complaint against the Plaintiff was the
e-mail that was sent during the early hours
of the morning of 11
November 2009. It was contented that there was no evidence to suggest
that the Complainant was at risk of
imminent danger. Mr. Mouton
conceded that the contents of the e-mail maybe insulting and amount
to a breach of the protection order
but argued that the Plaintiff did
not therein threaten the Complainant with physical harm. It was
further argued that little weight
must be attached to the evidence by
Forbes that the Plaintiff was allegedly at the Complainant’s
house in the night peeping
through her windows, as this was never put
in cross-examination to the Plaintiff to test the veracity thereof.
[18]
The Plaintiff’s counsel relied heavily on the dictum in
Seria
v Minister of Safety and Security and Others
2005 (5) SA 130
(C) for the proposition that Forbes failed to
properly investigate the matter; did not exercise his discretion to
arrest the Plaintiff
in a reasonable manner; and that the arrest and
subsequent detention of the Plaintiff was irregular and unlawful.
[19]
The main submissions on behalf of the Defendant were the following:
Forbes was an honest and reliable witness; he investigated
the matter
and after such investigation there were reasonable grounds to have
suspected that the Complainant may suffer imminent
harm; he properly
exercised his discretion in arresting the Plaintiff in terms of s
8(4)(b) and 8(5) of the Act. It was further
argued that the Plaintiff
on the other hand misled Du Toit in order to get access to the
premises of the Complainant; he willingly
contravened the protection
order against him; and his arrest in the circumstances was justified
and lawful.
[20]
It is now well accepted that the Act was promulgated in response to
the alarming high incidence of domestic violence within
South African
society. The central purpose of the Act is to afford victims of
domestic violence the maximum protection the law
can provide. In this
regard see
Minister
of Safety and Security v Venter and Others
2011 (2) SACR 67
(SCA) paras [19]-[22].
[21]
In terms of the Act a court of law is entitled to grant a protection
order for the protection of a victim of domestic violence
and
simultaneously issue a warrant of arrest of the perpetrator. The
execution of such a warrant of arrest may then be suspended
subject
to compliance with any prohibition, condition, obligation or order as
deem fit by the court.
[22]
In the present instance, it is not in dispute that a final protection
order was granted on 22 October 2009 against the Plaintiff
and
simultaneously a warrant of arrest issued. The warrant was
suspended on certain conditions which incorporated the orders
that
the Plaintiff is prevented from
inter
alia
committing further domestic violence, assaulting and or insulting the
Complainant; to enter the premises and or to be present at
[…],
Mosselbay.
[23]
The Plaintiff was at all times aware of the final protection order
and his arrest occurred as contemplated in terms of s 8(1)
of the
Act.
[24] The question now arises whether
Forbes properly exercised the discretion entrusted to him as
contemplated in terms of ss 8(4)
and 8(5) of the Act to arrest the
Plaintiff. The relevant sections provides as follows:
“
8
Warrant of arrest upon issuing of protection order
(1)
…
..
(2)
…
.
(3)
…
.
(4) (a) A
complainant may hand the warrant of arrest together with an affidavit
in the prescribed form, wherein it is stated that
the respondent has
contravened any prohibition, condition, obligation or order contained
in a protection order, to any member of
the South African Police
Service.
(b) If it
appears to the member concerned that, subject to subsection (5),
there are reasonable grounds to suspect that the complainant
may
suffer imminent harm as a result of the alleged breach of the
protection order by the respondent, the member must forthwith
arrest
the respondent for allegedly committing the offence referred to in
section 17(a).
[The
offences referred to in s 17(a) are the contravention of any
prohibition, condition, obligation or order imposed in terms of
s 7.]
(c) If the member concerned is of
the opinion that there are insufficient grounds for arresting the
respondent in terms of paragraph
(b), he or she must forthwith hand a
written notice to the respondent which-
(i) specifies the name, the
residential address and the occupation or status of the respondent;
(ii) calls upon the respondent to
appear before a court, and on the date and at the time, specified in
the notice, on a charge of
committing the offence referred to in
section 17(a); and
(iii) contains
a certificate signed by the member concerned to the effect that
he or she handed the original notice to the
respondent and that he or
she explained the import thereof to the respondent.
(d) The member
must forthwith forward a duplicate original of a notice referred to
in paragraph (c) to the clerk of the court concerned,
and the mere
production in the court of such a duplicate original shall be
prima
facie
proof
that the original thereof was handed to the respondent specified
therein.
(5) In considering whether or not
the complainant may suffer imminent harm, as contemplated in
subsection (4)(b), the member of
the South African Police Service
must take into account –
(a) the risk to the safety, health
or wellbeing of the complainant;
(b) the seriousness of the conduct
comprising an alleged breach of the protection order; and
(c) the length of time since the
alleged breach occurred.
(6) Whenever a
warrant of arrest is handed to a member of the South African Police
Service in terms of subsection (4)(a), the member
must inform the
complainant of his or her right to simultaneously lay a criminal
charge against the respondent, if applicable,
and explain to the
complainant how to lay such a charge.”
[25]
As stated previously, counsel for the Plaintiff relied heavily on the
dictum in
Seria
supra,
for the proposition that Forbes failed as a reasonable police officer
to properly exercise the discretion entrusted to him in terms
of s
8(4) and 8(5) of the Act. In that case the court considered whether
the immediate arrest as contemplated in s 8(4)(b) read
with s 8(5)
was justified or whether a written notice to the plaintiff as
intended in s 8(4)(c) could have been sufficient. It
appeared that
the police officer in
Seria
,
arrested the plaintiff on the basis of information by the complainant
that she feared for her life because of the plaintiff’s
threatening behaviour, the contents of a threatening letter received
by the complainant, and the report by the complainant that
she had
fled her home on receipt thereof, as well as a further statement
which blamed the plaintiff as the suspected author of
the threatening
and abusive note. The note in question read
:
“You are being watched. Your time is limited. You will not live
to see your son come back home from England.”
In
discussing the evidence, the court came to the conclusion that the
police officer in deciding to arrest the plaintiff was swayed
by the
hysterical demeanour and persistence of the complainant, and the
police officer’s own desire to help, and that there
was a
complete failure to investigate the matter.
[26]
The court,
inter
alia
,
held that had the police officer sufficiently and objectively
scrutinise and consider relevant information that was available
she
would have established that the plaintiff and his lawyer had attended
at the Lansdowne Police Station the previous night. The
arresting
officer’s superiors had decided at about midnight the previous
night that there were not reasonable grounds to
suspect that the
complainant may suffer imminent harm and accordingly the plaintiff
was not arrested.
[27]
The court further held that the abusive note and statement may have
provided grounds for the plausible inference that the plaintiff
was
the note’s author but did not provide reasonable grounds for a
suspicion, in the absence of further investigation that
the
complainant may suffer imminent harm. As a result, it was found
that the police officer’s failure to further investigate
the
matter, failed as a reasonable police officer to properly exercise
the discretion entrusted to her as contemplated in ss 8(4)
and 8(5)
of the Act and that the information at the time before her had
provided insufficient grounds for forthwith effecting an
arrest. The
court was however satisfied that the information was certainly
sufficient for apprehending the plaintiff under section
8(4)(c) of
the Act.
[28]
In recent times, as stated in
Seria
at 145 B, the term “
reasonable
grounds to suspect
”
and the phrase
“
reasonable
suspicion
”
have enjoyed considerable attention by our courts. In
Seria
the Court referred to
R
v Van Heerden
1958 (3) SA 150
(T) at 152E where Galgut, AJ (as he then was) stated
that the term “
reasonable
grounds to suspect”
:
“
[…]
must be interpreted objectively, and the grounds of suspicion must be
those which would induce a reasonable man to have
the suspicion.”
[29]
Reference was also made to
Ralekwa
v Minister of Safety and Security
2004
(2) SA 342
(T) wherein it was held at 347D-E that, “
[t]o
decide what is a reasonable suspicion there must be evidence that the
arresting officer formed a suspicion which is objectively
sustainable”.
The
phrase ‘reasonable suspicion’ has often been considered
particularly within the context of s 40(1)(b) of the Criminal
Procedure Act, 51 of 1977 (“CPA”). The section permits an
arrest by a police officer without a warrant where the arrestor
“reasonably suspects” the arrestee of having committed an
offence.
[30]
In
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 367
(SCA) the said section came under the spotlight again
and was revisited with reference to the Bill of Rights as entrenched
in our
Constitution. In that matter the Supreme Court of Appeal
held that once the required jurisdictional facts were present and
the
discretion whether or not to arrest arose, ‘
peace
officers were entitled to
exercise
this discretion as they saw fit, provided they stayed within the
bounds of rationality. This standard was not breached
because an
officer exercised the discretion in a manner other than that deemed
optimal by the court. The standard was not perfection,
or even the
optimum, judged from the vantage of hindsight, and, as long as the
choice made fell within the range of rationality,
the standard was
not breached’
.
See Headnote and Paragraphs [28] and [39] at 379 D-E. It was
held further that ‘
the
power to arrest was to be exercised only for the purpose of bringing
the suspect to justice; however, the arrest was but one
step in that
process. The arrestee was to be brought to court as soon as
reasonably possible, and the authority to detain the suspect
further
was then within the discretion of the court’
.
See Paragraphs [42] – [44].
[31]
In considering the question of whether a police officer, as in the
present instance, acted rationally and within the boundaries
of the
Act or not, it is in my view necessary to be reminded of what the
Court held in
Minister
of Safety and Security v Venter and Others
2011 (2) SACR 67
(SCA) para [27]: ‘
The
extensive protection available under the Act would be meaningless if
those responsible for enforcing it, namely SAPS members,
fail to
render the assistance required of them under the Act and the
Instructions. The legislature clearly identified the need
for a bold
new strategy to meet the rampant threat of ever increasing incidences
of domestic violence. Its efforts would come to
naught if the police,
as first point of contact in giving effect to these rights and
remedies, remain distant and aloof to them…’
.
[32]
In
Seria
supra
at page 146A-C the phrase ‘
imminent
danger’
was also considered and held that it is safe to say that imminent
harm is ‘
harm
which is about to happen, if not certain to happen’
.
[33]
Turning to the present matter. In order for me to pronounce that
Forbes exercised his discretion irrationally, I must conclude
that
the Plaintiff’s arrest was not in accordance with s 8(4) of the
Act, and that Forbes failed to apply the standards specified
as
contemplated in s 8(5) in arriving at the decision to arrest him.
These subsections as fully quoted above make it clear that
for Forbes
to have been permitted to arrest the Plaintiff in terms of the Act,
it had to appear to him that there were ‘
reasonable
grounds to suspect’
that
the Complainant
may
suffer ‘
imminent
harm
‘ as a result of the alleged breach of the protection order.
(My underlining). The word
may
in this context does not mean that the arresting officer must be
convinced that ‘
harm
is about to happen, if not certain to happen’
.
It only suggests there may be a possibility that it (
imminent
harm
)
may well happen.
[34]
It is now well accepted that each case must be decided upon its own
facts and that the Defendant bear the onus of alleging
and proving
that the arrest was lawful. See
Sekhoto
supra
at para [45].
[35]
In the present instance Forbes testified that after he received the
police docket, he familiarised himself with the contents
thereof
which contained an affidavit by the Complainant and an e-mail that
was sent to her from the Plaintiff’s email address.
He
thereafter telephonically contacted the Complainant. It was during
that conversation that the Complainant again confirmed her
complaint
against the Plaintiff. She further reported that she was a nervous
wreck, could not sleep at her own house and that the
Plaintiff was at
her house during the night and peeped through her windows. The
Complainant had further mentioned that she feared
for her life and
pleaded that Forbes must do something about the matter. Counsel for
the Plaintiff in argument was critical about
Forbes’ version
regarding the alleged conduct of the Plaintiff during the night as
this was not put in cross-examination
to the Plaintiff by the
Defendant’s counsel to test its veracity. The cross-examination
of the Plaintiff may have been perfunctory
but Forbes was, despite
the extensive cross-examination, an impressive witness.
[36]
Forbes as part of his further investigation, contacted Du Toit, who
filed an affidavit in this regard. The Plaintiff was also
contacted.
He was informed of the alleged charge against him. The Plaintiff was
thereafter told to report the following week Monday
to his offices as
the Plaintiff was in Worcester. There was some dispute as to what
exactly was said to Forbes regarding the issue
whether the Plaintiff
at the time was already in Worcester or on his way there. Forbes was
adamant the Plaintiff told him he was
already in Worcester.
[37]
On a conspectus of all the evidence there is no plausible reason to
disbelieve Forbes as to what the Plaintiff told him. Even
if the
Plaintiff was on his way to Worcester, what the evidence
overwhelmingly established is that Forbes was not swayed by any
demeanour and or persistence of the Complainant or by some desire of
his own to help, to ardently arrest the Plaintiff without
any further
investigation. In fact, in this instance unlike in the
Seria
matter, Forbes did indeed do further investigation. He firstly
established that the Plaintiff was indeed the author of the e-mail
that was sent to the Complainant. Secondly, the contents thereof were
vulgar, insulting and demeaning and that on the face of the
protection order, the Plaintiff was in breach thereof. The Plaintiff
on his version was not in the near vicinity of the Complainant
and
secondly that there would be no imminent threat or danger to her
whilst the Plaintiff was in Worcester.
[38]
The next step whereby Forbes warned the Plaintiff to attend to his
offices on the Monday, can hardly be criticised. The manner
in which
Forbes up to that stage dealt with the matter, must give credence to
the fact that he was mindful to the enormous responsibility
the Act
entrusted to police officers to effect arrests in these types of
matters.
[39]
As to the events that unfolded thereafter, Forbes was adamant that
there were ‘
reasonable
grounds to suspect
’
that the Complainant maybe in ‘
imminent
danger’
as a result of the alleged breach of the protection order. According
to Forbes the important factors he considered before the arrest
were
inter
alia
:
the safety of the Complainant; the fact that she was afraid of the
Plaintiff and believed that he may cause physically harm to
her by
burning her and the house down; the contents of the e-mail which the
Plaintiff sent in the early hours of the morning to
the Complainant,
which according to him was not only a clear breach of the protection
order but indicative of a person who is not
in control of his
emotions; the fact that the Plaintiff made contact with the
Complainant soon after he had been informed of the
charges against
him; and the fact that he was still in Mosselbay. Furthermore, he
considered the statement of Du Toit wherein she
under oath recorded
the Plaintiff misled her in order to gain access to the Complainant’s
property and his own belief that
the Plaintiff also misled him about
his whereabouts.
[40]
Forbes concern as to the safety of the Complainant having regard to
the e-mail cannot be faulted. Any reasonably informed person
would
have been concerned about the safety of the Complainant. The contents
of the e-mail were offending, extremely vulgar and
derogatory.
Despite the Plaintiff’s wording in the e-mail that he did not
wish to harm the Complainant there is very little
doubt the main
purpose of it was to torment, demean and indeed emotionally harm the
Complainant. In one of the paragraphs, the
Plaintiff recorded the
following in Afrikaans: “
Ek
sal nie gaan le nie. Jy weet wat mense van my se. Ek byt soos ‘n
“BULLDOG” en los nie voor ek my sin kry nie.”
(Loosely translated it means that ‘the Plaintiff will not
let go. You know what people say about me. I bite like a
bulldog and
will not rest until I have my way’). The bulk of the e-mail’s
content was therefore in stark contrast to
the Plaintiff’s oral
evidence that he meant no harm to the Complainant. Moreover, the
Plaintiff on his own version was deliberately
in breach of the
protection order.
[41]
The Complainant’s fear in this instance was therefore not based
on some hysterical demeanour and persistence on contrived
grounds but
on real grounds of domestic violence that falls squarely within the
Act.
[42]
Forbes’ belief that the Complainant may be in imminent danger
can also not be faulted. The information to his disposal
at the time
was, in my view, more than sufficient to have alerted any reasonable
officer that the Plaintiff was emotionally unstable.
In addition,
Forbes formed the opinion that he was abusive towards the Complainant
and that she needed to be protected from him
to avoid further abuse.
Forbes further concern that the Plaintiff was deceitful and
untrustworthy can also not be criticised.
Du Toit recorded under oath
she was misled by the Plaintiff. Furthermore, he immediately made
contact with the Complainant after
being informed that she had laid a
charge against him and he was indeed in the near vicinity of the
Complainant and not in Worcester.
The Complainant’s fear for
her wellbeing and safety was therefore not based on some imaginable
hysteria or on flimsy and
unreasonable grounds.
[43]
The criticism that Forbes failed to investigate the matter and acted
unreasonably or capriciously in arresting the Plaintiff
is on a
conspectus of all the evidence, without merit.
Seria
is therefore distinguishable from this matter. A full and complete
investigation regarding all the allegations in a statement by
a
Complainant before an arrest in terms of s 8(4) and s 8(5) of the Act
is not what our law requires. All that is required is that
the
arrestor exercise his or her discretion rationally within the
boundaries of the Act and ‘to bring the arrestee to justice’.
Sekhoto
supra
at para [28] and [39]. The fact that Forbes may not have fully
investigated the alleged threat uttered by the Plaintiff regarding
the burning of the Complainant and her house does not detract from
the fact that Forbes acted, with the available information to
his
disposal, rationally. As stated previously, the standard was
not breached because an arrestor exercised the discretion
in a manner
other than that deemed optimal by the court. The standard is not
perfection, or even the optimum, judged from the advantage
of
hindsight, and, as long as the choice made fell within the range of
rationality, the standard was not breached.
[44]
The claim that the Plaintiff was not a flight risk as his full
details and address was well known and that Forbes and or SAPS
members acted with
animo
iniuriandi
,
in effecting the Plaintiff’s arrest, detention and continued
detention, is contrived. The mere fact that the full details
of a
suspect may be known to the police, as in this instance, can hardly
be the only relevant factor to consider whether or not
to release
such a person on warning as envisaged in terms of s 8(4)(c) of the
Act. It certainly can be one of the many other relevant
factors that
an arresting officer may consider in exercising his or her discretion
in terms of the Act. Moreover, once Forbes had
arrested the Plaintiff
and brought him before the court, his authority to detain, that is
inherent in the power to arrest, is exhausted.
The authority to
detain the suspect further is then within the discretion of the
court.
Sekhoto
supra
at para [42]. In any event the reasons advanced by Forbes that he
merely made a suggestion to the prosecutor who then formally
opposed
the release of the Plaintiff on bail was not gainsaid.
[45]
On a conspectus of all the evidence Forbes clearly exercised his
power to arrest for the purpose of bringing the Plaintiff
to justice.
The evidence further shows that once the Plaintiff was arrested he
was as soon as reasonably possible brought before
the magistrate.
[46]
For these stated reasons I am satisfied that the Defendant has proven
on a balance of probabilities that Forbes has properly
exercised his
discretion to arrest the Plaintiff.
[47]
It follows that the Plaintiff’s claim cannot succeed and falls
to be dismissed.
[48]
In the result the following order is made.
The Plaintiff’s claim is
dismissed with costs.
_____________________
LE
GRANGE, J