Brief Summary

Damages — Wrongful arrest and detention — Plaintiff claiming damages for wrongful arrest and detention by police officer — Arrest based on alleged breach of domestic violence protection order — Defendants asserting lawful arrest under section 40(1)(q) of the Criminal Procedure Act and section 3 of the Domestic Violence Act — Court finding that the first defendant's belief in the necessity of arrest was reasonable given the circumstances — Plaintiff's detention deemed lawful and claim for damages dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a delictual damages action for wrongful arrest and detention, brought in the South Gauteng High Court, Johannesburg. The plaintiff, Lionel Mervin Greenberg, sued Renier du Preez (a detective sergeant stationed at SAPS Edenvale at the time) as first defendant, and the Minister of Safety and Security as second defendant, for damages arising from the plaintiff’s arrest on 6 July 2000 and his subsequent deprivation of liberty until 7 July 2000.

The matter proceeded to trial after pleadings in which the defendants initially alleged that the arrest was effected on a warrant, alternatively that it was justified under section 40 of the Criminal Procedure Act. At the commencement of the trial, however, the defendants’ counsel disavowed reliance on section 40(1)(b) (Schedule 1 reasonable suspicion) and informed the court that the defence rested only on section 40(1)(q) of the Criminal Procedure Act read with section 3 of the Domestic Violence Act, namely arrest without a warrant on reasonable suspicion of an act of domestic violence constituting an offence with an element of violence.

The dispute concerned the lawfulness of the arrest and detention in circumstances linked to an acrimonious domestic relationship and an interim protection order obtained by the plaintiff’s former wife under the Domestic Violence Act. The quantum of damages for the established deprivation of liberty was also in issue.

2. Material Facts

It was common cause that the plaintiff and his former wife, Mrs Greenberg, had undergone a highly acrimonious divorce, and that the plaintiff had left the former common home around the end of April 2000. It was also common cause that on 9 June 2000 Mrs Greenberg obtained an interim protection order in terms of section 5(2) of the Domestic Violence Act against the plaintiff. The order prohibited him, among other things, from entering Mrs Greenberg’s residence (the former matrimonial home), entering her place of employment (at the residence), and from certain further forms of contact and conduct.

The events leading to police involvement arose on 5 July 2000 when the plaintiff was informed (via Ms Rose Malotane, the domestic worker at Mrs Greenberg’s residence) that the plaintiff and Mrs Greenberg’s minor son (almost 13 years old at the time) had disappeared from Mrs Greenberg’s residence. The plaintiff, accompanied by a co-worker, then went to assist in searching for the child. The plaintiff’s evidence was that he arrived in the vicinity of Mrs Greenberg’s residence with the intention not to enter the residence, but to enquire via the intercom and to search for the child, including in a park across the road.

A confrontation occurred outside Mrs Greenberg’s residence when Mrs Greenberg approached the gate to enter. The plaintiff was on the street next to his car and asked about the child’s whereabouts. A verbal altercation followed. A police officer, Sgt Richard Kgomo, attended on the scene. According to the plaintiff, Mrs Greenberg was hysterical and referred to a domestic violence interdict. The plaintiff stated that he remained calm and complied with Sgt Kgomo’s request to leave and to go to the Edenvale police station.

The court admitted, under the Law of Evidence Amendment Act, an affidavit by Sgt Kgomo. In material respects, the affidavit recorded that when he arrived at the scene Mrs Greenberg was shouting and crying and did not want the plaintiff there; the plaintiff was standing at his vehicle and said he was looking for the child; Sgt Kgomo asked the plaintiff to leave due to Mrs Greenberg’s emotional state; and while on the scene the plaintiff “never got aggressive or abusive”. The affidavit further recorded that, once at the police station, Mrs Greenberg opened a case against the plaintiff and that the dispute concerned the child.

At the Edenvale police station, the plaintiff and the first defendant gave differing versions of the plaintiff’s conduct inside the charge office. The first defendant testified he encountered a heated “screaming match” between the former spouses, that Mrs Greenberg was hysterical and the plaintiff was domineering and interruptive, and that he detained the plaintiff in the holding cells area because the plaintiff allegedly prevented Mrs Greenberg from giving her version. The plaintiff denied this and testified he was locked up without more soon after entering the charge office. The court preferred the first defendant’s version on this aspect, in light of the undisputed domestic quarrel and the emotional context.

It was common cause that the first defendant detained the plaintiff in the holding cells area at SAPS Edenvale. The plaintiff’s unchallenged estimate was that detention commenced at approximately 20h15 on 6 July 2000, shortly after arrival at the police station. While the plaintiff was in the holding cells area, the first defendant obtained Mrs Greenberg’s sworn statement and she produced the interim protection order. The first defendant also testified that he telephoned Ms Malotane and that her information contradicted the plaintiff’s version. The first defendant consulted the station commander, Lt-Col Swart, and formed a prima facie view that the plaintiff had breached the interim protection order.

The first defendant conceded that the plaintiff’s arrest was without a warrant and testified that he arrested the plaintiff while he was still being detained in the holding cells area, based on Mrs Greenberg’s statement, the interim protection order, the plaintiff’s version, and the consultation with Lt-Col Swart. The plaintiff was therefore both detained at the police station and then placed under arrest while already confined.

As to duration and continuation of deprivation of liberty, the documentary entries showed that the arrest was recorded in the docket as 6 July 2000 at 22h30, and his release recorded as 7 July 2000 at 00h45. The plaintiff was released into the custody of Mr Peter Uko, following intervention with the station commander. The plaintiff then spent the remainder of the night at Mr Uko’s home under an arrangement described as custodial, and Mr Uko testified (unchallenged) that the plaintiff “was not a free man”. Mr Uko then took the plaintiff to the Germiston Magistrates’ Court the next morning, where the plaintiff was detained in court holding facilities until he appeared at about noon and was released.

The court identified the “inevitable conclusion” as being that the arrest and detention were unlawful in all the circumstances, and then turned to determine an appropriate damages award, taking into account relevant factors and comparative awards (including a previous award to the same plaintiff in a similar wrongful arrest matter).

3. Legal Issues

The central legal issue was whether the plaintiff’s arrest and deprivation of liberty were lawful, given that the defendants relied solely on section 40(1)(q) of the Criminal Procedure Act read with section 3 of the Domestic Violence Act as the statutory justification for a warrantless arrest.

This required the court to determine, as a matter of application of law to fact, whether the jurisdictional facts for an arrest under section 3 of the Domestic Violence Act (as incorporated by section 40(1)(q) of the Criminal Procedure Act) were present. In particular, the court had to decide whether the arrest occurred “at the scene of an incident of domestic violence” and whether the suspected offence was one containing an element of violence against the complainant.

A further issue (arising after the finding on unlawfulness) concerned quantum, namely what constituted an equitable damages award for the arrest and the period of deprivation of liberty in the circumstances of the case. This involved an evaluative assessment based on established factors relevant to damages for wrongful arrest and detention and comparison with previous awards.

4. Court’s Reasoning

The court first addressed evidentiary matters relevant to the factual matrix. It exercised its discretion to admit the affidavit evidence of Sgt Kgomo under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, having regard to the listed statutory factors and concluding that admission was in the interests of justice. The court explained that the affidavit was tendered to corroborate the plaintiff’s account of events at Mrs Greenberg’s residence, that the probative value outweighed potential prejudice, and that the defendants could have called Mrs Greenberg to refute the evidence but did not do so. The court also considered that Sgt Kgomo was a police officer who attended in an official capacity and was not suggested to be connected to either side.

On the factual dispute about what occurred inside the charge office, the court preferred the first defendant’s version that a heated domestic quarrel was continuing and that the first defendant intervened in response to an out-of-control situation. This finding was tied to probability considerations and the context that the plaintiff was distressed about the missing child and Mrs Greenberg was hysterical.

However, the decisive question was not whether there was a domestic dispute or whether the first defendant had grounds for concern, but whether the statutory threshold for warrantless arrest under the Domestic Violence Act framework was met. The court emphasised that section 3 of the Domestic Violence Act authorises arrest without a warrant only in circumscribed circumstances, and treated compliance with those requirements as necessary jurisdictional facts.

Applying the statutory text, the court held that the requirements were not satisfied. It reasoned that the plaintiff’s arrest did not occur “at the scene of an incident of domestic violence”, and it was also not suggested that the offence the plaintiff was alleged to have committed contained “an element of violence” against Mrs Greenberg. On that basis, the court concluded that the arrest and detention were unlawful.

After finding unlawfulness, the court determined damages. It referred to a LAWSA summary of relevant factors influencing awards in wrongful arrest and deprivation of liberty matters, including the circumstances of the interference with liberty, the presence or absence of malice or improper motive, duration, social status, publicity, apology or explanation, and comparative awards adjusted for inflation. The court considered counsel’s references to prior awards and gave particular attention to an unreported decision involving the same plaintiff, where he had previously been unlawfully arrested at the same police station on a matrimonial issue and detained for approximately seventeen and a half hours, resulting in an award of R30 000.00 with High Court costs.

Having regard to all relevant factors in the present case and the comparative guidance provided by the earlier award to the plaintiff in a similar context, the court concluded that a similar award would be appropriate and equitable. On costs, the court determined that the plaintiff’s costs should be borne by the second defendant alone.

5. Outcome and Relief

The court held that the plaintiff’s arrest on 6 July 2000 and deprivation of liberty were unlawful.

Judgment was granted in favour of the plaintiff, with an award of R30 000.00 as damages for unlawful arrest and deprivation of liberty. The court further ordered that the second defendant (the Minister of Safety and Security) pay the plaintiff’s costs on the High Court scale, as between party and party.

Cases Cited

Greenberg v Minister of Safety & Security (WLD Case No 22263/03) (unreported).

Legislation Cited

Criminal Procedure Act 51 of 1971, section 40(1)(b) and section 40(1)(q).

Domestic Violence Act 116 of 1998, section 1, section 3, and section 5(2).

Law of Evidence Amendment Act 45 of 1988, section 3(1)(c).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court found that the defendants’ reliance on section 40(1)(q) of the Criminal Procedure Act read with section 3 of the Domestic Violence Act could not justify the plaintiff’s warrantless arrest, because the statutory jurisdictional facts were not present. In particular, the arrest did not occur at the scene of an incident of domestic violence, and it was not suggested that the suspected offence contained an element of violence against Mrs Greenberg.

As a result, the court held that the plaintiff’s arrest and ensuing deprivation of liberty were unlawful and awarded damages of R30 000.00, together with a costs order against the second defendant on the party-and-party High Court scale.

LEGAL PRINCIPLES

The judgment applied the principle that statutory powers of arrest without warrant—particularly those tied to domestic violence policing—are circumscribed and may be exercised only when the jurisdictional facts specified by the empowering provisions are present. Where section 40(1)(q) of the Criminal Procedure Act is invoked through section 3 of the Domestic Violence Act, the arresting officer must act within the confines of those provisions, including the requirement that the arrest be effected at the scene of an incident of domestic violence and on reasonable suspicion of an offence containing an element of violence against the complainant.

The judgment further applied the evidentiary principle that hearsay may be admitted under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 where admission is in the interests of justice, taking into account the statutory factors and weighing probative value against prejudice.

On quantum for wrongful arrest and detention, the judgment applied the approach that damages are assessed with reference to recognised factors influencing the seriousness and impact of the deprivation of liberty, and with comparative regard to awards in previous cases, adjusted as appropriate, in order to arrive at an equitable sum in the circumstances.

Greenberg v Du Preez and Another (23302/2002) [2013] ZAGPJHC 67 (31 March 2013)