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[2016] ZAGPJHC 302
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Dlamini v Minister of Safety and Security (A5002/2015) [2016] ZAGPJHC 302; 2016 (2) SACR 655 (GJ) (1 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
DATE:
1 JUNE 2016
CASE
NO: A5002/2015
In
the matter between
MAKHOSEMBI
SIYABONGA
DLAMINI
.....................................................................
APPELLANT
And
THE
MINISTER OF SAFETY AND
SECURITY
.......................................................
RESPONDENT
Delict
- unlawful arrest and detention - police officer investigating
complaint of domestic violence - nature of duty in the exercise
of
discretion to arrest discussed -no duty on arresting officer to
conduct full investigation of all facts and circumstances -
appellant
properly arrested and not arbitrarily or without lawful cause -
appeal dismissed.
J
U D G M E N T
VAN
OOSTEN J:
[1]
The appellant instituted an action for damages
against the respondent for alleged unlawful arrest and detention. The
trial of the
matter came before Wright J, who having heard the
evidence adduced on behalf of the parties and argument, dismissed the
appellant’s
claim with costs. The appeal before this court is
against the whole of the judgement and order and is with leave of the
court a
quo.
[2] The facts which
gave rise to this matter can be summarised as follows: The appellant
and his wife were embroiled in divorce
proceedings although they were
still living together. On 27 October 2012 the appellant’s wife,
Jill Anna Turnbull, accompanied
by a friend, arrived at the Linden
police station. At 09h15 she made a written statement in which she
graphically described violent
behaviour by her husband towards her
the previous day at 19h40 after she had arrived home from the
airport. The appellant, according
to the statement, had thrown her
clothes and rubbish bags on her bedroom floor which she picked up and
placed on the couch. The
appellant arrived, took her cell phone from
her pocket and while he was pushing her, threw it against the wall
and then smashed
the cell phone with a baseball bat in front of the
children. He then proceeded to the kitchen where he took a knife and
put it
in his pocket. He went outside and poured petrol over her car.
He returned, took out the knife from his pocket, put it back and
pushed her down the steps resulting in an injury to her foot which
caused her to limp. He went back to her car and threatened to
set it
alight. Their little daughter screamed for him to stop but he took
the knife from his pocket and slashed the tyre of her
car. He warned
her that the worst was still to come.
[3] That same
morning, at approximately 09h40, Sergeant Letsoalo, who was stationed
at the Linden police station, was on patrol
duty when he received a
call from the client service centre at the police station that a case
of domestic violence had been opened
and that the complainant would
point out the suspect to him. He returned to the police station and
met Turnbull who informed him
that she was there to lay a charge. He
was shown the docket in the matter and realised that it concerned a
case of domestic violence.
The statement Turnbull had made was in the
docket and he read it. He came to the conclusion that she had been
assaulted and that
the appellant had damaged property by stabbing the
wheel of her car with a knife. He accordingly suspected the
commission of the
offences of assault and malicious injury to
property with threats of domestic violence ‘on top of that’
which ‘made
me arrest him [the appellant] because he was
threatening that he can do something dangerous to the victim or the
complainant’.
Turnbull informed him that she had left the
children at home and he, accompanied by Sergeant Mphahlele, proceeded
to the family
home in an area he was well acquainted with, followed
by Turnbull in her friend’s motor vehicle.
[4] Upon their
arrival at the house he observed that Turnbull was afraid to enter
the house. She stayed behind him and the appellant
was standing at
the entrance door. Turnbull pointed the appellant out to him as the
man who had assaulted her. He greeted the appellant
and introduced
himself and his colleague. He explained to the appellant that
his wife had laid a charge against him at the
police station and that
for that reason he was there to arrest him on charges of domestic
violence, malicious injury to property
and intimidation. The
appellant responded in saying that there was no problem. He started
explaining his constitutional rights
to him but the appellant
interjected and said that, being an attorney, he was well aware
thereof. The appellant asked to be given
the opportunity to get
properly dressed and he was allowed to do so. The appellant was not
handcuffed as he was co-operative. They
then proceeded to the Linden
police station and the appellant was handed to the office commander.
He appeared in court on 29 October
2012 but the case against him was
eventually withdrawn at the instance of Turnbull.
[5] Sgt Letsoalo
conceded that, although he could easily have done so, no further
investigation was conducted at the house where
the appellant was
arrested with the view of establishing the truth of the allegations
Turnbull had made in the police statement.
He testified that Turnbull
was shaking, that she seemed to be in shock when he interviewed her
at the police station and that she
had raised concerns about the
safety of the children who were at home with the appellant. She
observed that she was limping and
she explained that it was a result
of falling down the stairs. He admitted that the arrest was
discretionary and that he did consider
not
arresting the
appellant but decided to arrest him as ‘the complainant was not
feeling safe if he [the appellant] was still
around because she was
even afraid to go home’.
[6] This brings me
to the version of the appellant. On the morning of the arrest he was
in the bedroom to change clothes after having
finished breakfast with
the children and planning to play football with them outside, when
his wife entered and informed him that
the police wanted to talk to
him. Although she had returned home from a business trip to Cape Town
the previous day, her whereabouts
that morning was of no concern to
him as they were involved in acrimonious divorce litigation. Sgt
Letsoalo and another police
officer carrying a gun, were just behind
her. Sgt Letsoalo informed him that his wife had opened a case
against him, ‘that
you hit her’ and in response he
started questioning him what this was all about. He in vain attempted
to bring to their attention
a letter he had received the previous day
from his wife’s attorneys in the divorce action as well as his
file containing
documents relevant to those proceedings. Their simple
response was that he could talk at the police station. He was
handcuffed,
escorted out of the house with a gun in his back, in
front of his two children, then put in the police van and taken to
the police
station. The handcuffs were removed and he was eventually
placed in a cell. He appeared in the court on the Monday but was
refused
bail as he did not have an alternative residential address.
He was released on the Thursday after his arrest on the previous
Saturday.
His wife in the meanwhile had obtained a domestic violence
protection order against him
inter alia
forbidding him to
enter the matrimonial home. He in turn opened a case against his
wife. Both the criminal case and the domestic
violence proceedings
were eventually withdrawn at the behest of his wife. The allegations
against him concerning the incident the
day before his arrest, he
maintained, were ’totally unfounded’ and ‘totally
untrue’.
[7] The learned
judge a quo held that Sgt Letsoalo’s has reasonable grounds to
arrest the appellant, which could not be impugned,
although ‘it
would not have been difficult for him to make a few enquiries’
to verify the allegations made in Turnbull’s
police statement.
[8]
It
is trite that a deprivation of a person’s liberty, such as
arrest and detention at the hands of the police, is
prima
facie
unlawful. In
Minister
of Justice v Hofmeyr
[1993] ZASCA
40
; 1993(3) SA 131(A) 153D-E, the then Appellate Division (per
Hoexter JA) stated as follows:
‘
The
plain and fundamental rule is that every individual's person is
inviolable. In actions for damages for wrongful arrest or
imprisonment
our Courts have adopted the rule that such infractions
are
prima facie
illegal.’
[9]
In an action for wrongful arrest and detention a plaintiff only bears
the onus of proving the arrest and detention. Recently,
in
Relyant
Trading (Pty) Ltd v Shongwe and another
[2007] 1 ALL SA 375
(SCA)
the Supreme Court of Appeal (per Malan AJA) reiterated this position
as follows (par 6):
‘
To
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself, or someone acting as his agent
or
employee deprived him of his liberty.’
[10]
In
Minister of Justice v Hofmeyr
(supra) the court further
held ‘Once the arrest or imprisonment has been admitted or
proved it is for the defendant to allege
and prove the existence of
grounds in justification of the infraction.’ This pronouncement
was in approval of the AD’s
decision in
Minister of Law and
Order and others v Hurley and another
1986 (3) SA 568
(A) where
the Court (per Rabie CJ) stated as follows (589D-E):
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in law.’
[11]
I
n
Duncan v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-H, Van Heerden JA explained that once the
jurisdictional requirements of s 40(1)(b) of the Criminal Procedure
Act 51
of 1977 (the CPA), are satisfied, the peace officer may, in
the exercise of his discretion, invoke the power to arrest permitted
by the law. However, the discretion conferred by s 40(1) of the CPA
must be properly exercised, that is, exercised in good faith,
rationally and not arbitrarily. If not, reliance on s 40(1) will not
avail the peace officer.
[12] It is now
settled that the purpose of the arrest is to bring the arrestee
before the court, for the court to determine whether
the arrestee
ought to be detained further, for example, pending further
investigations or trial (see
Minister of Safety and Security v
Sekhotho & another
[2010] ZASCA 141
;
2011 (5) SA 367
paras
30-31). An arrest will accordingly be irrational and consequently
unlawful if the arrestor exercised his discretion to arrest
for a
purpose not contemplated by law.
[13]
In the present matter the jurisdictional facts of the arrest and
detention of the appellant are common cause. The respondent
accordingly, bears the onus of proving the lawfulness of the arrest
and detention. In my view the learned judge a quo correctly
found
that reasonable grounds for the arrest of the appellant had been
proved. The arresting officer was in possession of a statement
made
by a complainant to a colleague under oath revealing serious
allegations concerning domestic violence. He had the opportunity
of
interviewing the complainant who confirmed the allegations of
domestic violence. She was limping and her explanation therefore
indeed corroborated the version in her statement. He proceeded to the
house where the parties were living. The appellant was present.
Having been informed of the reason for their visit, the appellant
offered no explanation but simply willingly subjected himself
to the
arrest.
[14]
I interpose to consider the credibility of the appellant’s
version. In my view the appellant was an unsatisfactory witness,
who
was plainly dishonest. The learned judge a quo did not make any
specific credibility findings in regard to the appellant’s
version, but correctly referred to the unexpected, surprising
evidence of the appellant that belatedly emerged in
cross-examination,
that he indeed had searched his wife’s cell
phone in order to obtain information relating to her suspected
relationship with
another man. His evidence, moreover, that nothing
out of the ordinary had happened on the Friday evening is illogical
and improbable,
considered in the context of the totality of the
facts of this matter. His evidence moreover, was given in an
unsatisfactory manner.
He resorted to unduly long, non-sensical
answers and disingenuously evaded the real issues. It is abundantly
clear from the evidence
that an incident of domestic violence had
occurred which gave rise to the appellant’s eventual arrest.
[15]
The real issue in this matter accordingly concerns the question
whether Sgt Letsoalo exercised his discretion properly in deciding
to
arrest the appellant. That brings to the fore whether he should have
conducted a further investigation to verify the truth of
the
allegations in the statement, after his arrival at the house. Put
differently, was there a duty on Sgt Letsoalo to conduct
such further
investigation and verification, in order to enable him to properly
exercise his discretion whether or not to arrest
the appellant.
[16]
The constitutionality of an arrest will almost invariably be heavily
dependent on its factual circumstances (see
Minister
of Safety and Security v Van Niekerk
2008
(1) SACR 56
(CC) para 17). The factual circumstance pertinently
relevant to the present matter is that a case domestic violence was
reported
to Sgt Letsoalo. I
n
S
v Baloyi (Minister of Justice & another Intervening)
[1999]
ZACC 195
;
2000 (2) SA 425
(CC) para 13, the Constitutional Court held
that the freedom from violence is fundamental to the equal enjoyment
of human rights
and freedom. It was further stated that the sting of
domestic violence lies in its ‘hidden, repetitive character and
its
measurable ripple effect on society and in particular family
life’ and further that domestic violence reinforces patriarchal
domination given its ‘systemic, pervasive and overwhelmingly
gender-specific’ nature (para 12). Its harrowing effects
the
court held are made all the more devastating because of ‘the
ineffectiveness of the criminal justice system in addressing
family
violence’ which in turn ‘intensifies the subordination
and helplessness of the victims’ (para 12).
[17] Against this
background it is necessary to briefly consider the nature of the
duties imposed on members of the South African
Police Service in
regard to domestic violence and the manner in which victims of
domestic violence must be treated and assisted.
In
Naidoo v
Minister of Police
(20431/2014)
[2015] ZASCA 152
(2 October
2015), the Supreme Court of Appeal extensively dealt with those
duties with reference to the provisions of the Domestic
Violence Act
116 of 1998 (the Act), its Regulations and the police standing
orders, as encapsulated in the National Instruction
7 of 1999 issued
by the National Commissioner of Police pursuant to s 18(3) of the
Act. In
Minister of Safety and Security v Venter & others
[2011] ZASCA 42
;
2011 (2) SACR 67
(SCA) the wide-ranging nature
of the rights and remedies accorded victims of domestic violence
under the Act, was emphasised (para
19) and the manifest object of
the Act spelt out in the preamble, which is to ‘afford the
victims of domestic violence the
maximum protection from domestic
abuse that the law can provide.’ Section 2 of the Act provides
that:
‘
2
Duty to assist and inform complainant of rights
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.’
[18] The provisions
of paragraph 7(1) of the National Instruction impose a duty on
members of the SAPS to render assistance to victims
of domestic
violence by receiving and investigating the complaint.
[19] In my view Sgt
Letsoalo fully complied with his duties under the provisions referred
to above. I can find no support for the
notion that he should have
conducted a further investigation, which on the facts of this matter,
in my view, would have been superfluous.
As a general rule, and
depending on the circumstances of each case, it cannot be expected of
a reasonable police officer in these
circumstances to conduct a
further investigation. The arrest of the appellant was for the
purpose of bringing him before court.
Once arrested the appellant
would have been entitled to exercise all the rights enjoyed by an
arrested person. Support for these
findings is to be found in
National Commissioner of Police and Another v Coetzee
2013 (1)
SACR 358
(SCA), where Mpati P, writing for the court, confirmed the
jurisdictional facts necessary for an arrest under s 40(1), and added
thereto (para 14):
‘
The
arresting officer is not required to conduct a hearing before
effecting an arrest. Whether an arrested person should be released,
and if so, subject to what conditions, arises for later decision by
another person and that is the safeguard to the arrestee’s
constitutional rights. Once the jurisdictional requirements are
satisfied the peace officer has a discretion as to whether or not
to
exercise his or her powers of arrest. Obviously, the discretion must
be exercised properly.’
[20] For all the
above reasons I conclude that Sgt Letsoala exercised his discretion
to arrest the appellant properly and not arbitrarily
or without
lawful cause. It follows that the trial court correctly dismissed the
appellant’s claim and the appeal accordingly
falls to be
dismissed.
[21]
In the result the following order is made:
1.
The appeal is dismissed.
2.
The appellant is ordered to pay the costs of the appeal.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
FHD
VAN OOSTEN
I
agree.
MHE
ISMAIL
JUDGE
OF THE HIGH COURT
I
agree.
RE
MONAMA
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPELLANT ATT RM MOTSA
APPELLANT’S
ATTORNEYS MOTSA (MUSA) ATT
COUNSEL
FOR RESPONDENT ADV M MAIMELA
RESPONDENT’S
ATTORNEYS THE STATE ATTORNEY
DATE
OF HEARING 1 JUNE 2016
DATE
OF JUDGMENT 1 JUNE 2016