About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 111
|
|
Minister of Safety and Security v Katise (328/12) [2013] ZASCA 111; 2015 (1) SACR 181 (SCA) (16 September 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 328/12
In the
matter between:
THE
MINISTER OF SAFETY AND SECURITY
...............................................
APPELLANT
and
BONISILE
JOHN KATISE
............................................................................
RESPONDENT
Neutral citation:
Minister
of Safety and Security v Katise
(328/12)
[2013] ZASCA 111
(16
September 2013)
Coram:
Nugent, Lewis, Maya, Tshiqi and Pillay JJA
Heard:
9 September 2013
Delivered: 16 September 2013
Summary:
Where a peace officer without warrant arrests a person on the
reasonable suspicion that he is committing acts of domestic violence
the arrest will not be unlawful only because there is no domestic
protection order against that person in place.
ORDER
On appeal from
Eastern Cape High Court, Grahamstown (Rorke AJ
sitting as court of first instance):
The appeal is upheld. The order of the high court is replaced with:
‘The plaintiff’s claim is dismissed with costs.’
JUDGMENT
Lewis JA(Nugent, Maya, Tshiqi and Pillay JJAconcurring
):
[1] The respondent, Mr B J Katise, was arrested by members of the
South African Police Service at Bedford, Eastern Cape, on 18
April
2009. They did not have a warrant for his arrest. Katise was
subsequently detained at the instance of a magistrate for ten
days
before he was released on bail. The charge against him –
contravening a protection order issued in terms of the
Domestic
Violence Act 116 of 1998
– was withdrawn. He instituted action
in the High Court, Eastern Cape, Grahamstown, against the Minister of
Safety and Security
for damages for wrongful arrest and
detention.That court (Rorke AJ) upheld the claim and awarded damages
in the sum of R200 000
to be paid to Katise. The Minister appeals
against that order with the leave of the high court.
[2] Before considering whether the arrest of Katise was wrongful I
shall briefly set out the events that gave rise to the arrest.
Katise, who lived in Bedford, had a history of behaving in an abusive
fashion when drunk. The victim of his abuse was his wife.
He had
assaulted her on various occasions, and used abusive language. The
police in Bedford had frequently been called to intervene
and had
witnessed Katise treating his wife with violence.Katise admitted that
he had been arrested on various occasions, either
at home or on the
street, for ‘drunken noise’.
[3] MrsKatise was advised by the police to ‘open up a domestic
violence’ case. She had gone to the magistrate’s
court
and, on 2 June 2008, obtained a provisional protection order under
the
Domestic Violence Act 116 of 1998
, restraining Katisefrom
assaulting or threatening to assault her. That order gave Katise the
right to appear in court on 23 June
2008 to give reasons why the
provisional order should not be confirmed.
[4] Although the magistrate filled in a form relating to an enquiry
under the Act it is not clear whether there was in fact any
enquiry
made and whether the protection order was made final. It appears that
neither Mr nor MrsKatise appeared in court on the
return date and the
magistrate made no order. In my view nothing turns on this. The
existence or otherwise of a protection order
was not necessary for
the determination of whether the arrest was wrongful. I shall explain
why in due course.
[5] The arrest was made on 18 April 2009. Katise had arrived at his
home drunk. MrsKatise was there with her 11 year old child
and a
friend, MsSizani (who happened to be a relative of Katise). MrsKatise
told Katise that she was going with Sizani to an aunt’s
home.
Katise had called her vulgar names and suggested she was a whore. On
her version, as well as that of Sizani, he had attempted
to pour
water from a pot on the stove over her head and had spilled water on
the floor. A scuffle broke out between them. He chased
her and
stabbed her with a sharp object, called a ‘sword’ by the
various witnesses. She threw a stone at his head which
bled. Her hand
was cut. The friend went to a public phone and called the police.
When Constable Booi, together with a police reservist,
arrived on the
scene he saw Katise chasing his wife, shouting and carrying a spade.
The sword could not be found. Both of them
were injured at that
stage.Katise had a gash on his forehead which was bleeding and
MrsKatise’s hand was cut. Both required
stitches to their
wounds.
[6] Booi took bothKatises to a nearby hospital, asking the staff to
attend to their injuries, and to keep watch on them. He would
return
to collect them, he said. He then went to the Bedford police station
where he reported the incident to Sergeant Marangule.
It was
Marangulewho had sent Booi to the Katise’s home on receiving
the telephone call from Sizani. Booi advised Marangule
that when he
got to the house he saw that Katise had stabbed MrsKatise and heard
him threatening to assault her with the spade.
[7] Marangule instructed Booi to fetch the Katisesfrom the hospital
and to bring Katise to the police station: ‘he was still
drunk
and still not co-operative’. He was also still ‘violent’.
Booi brought both Katises to the police station
where MrsKatise made
a statement about the incidents of the afternoon. Marangule
considered that Katise ‘intended to injure’
his wife.
When filling in the necessary forms (which Katise refused to sign)
Marangule heard MrsKatise state that there was a ‘domestic
violence order’ against her husband. He checked Katise’s
file and found that an interim protection order had been issued.
He
arrested Katise.
[8] When asked at the trial why he did so, Marangule responded:‘Booi
informed me that MrKatise had a sword and he hid it
and he threatened
her with a spade. And then I thought to myself if they can go back
both of them he can use it again and MrKatise
was also drunk. . .
That is why I took that decision even the wife said he can kill her.’
When cross examined, and advised
that Booi had said that the reason
Katise had been arrested was because he had contravened a domestic
violence protection order,
Marangule said ‘Yes it is right and
more because he assaulted the wife and injured her.’
[9] That was sufficient in my view to justify an arrest without a
warrant under
s 40(1)(
q
) of the Criminal Procedure Act.
That section reads:
‘
Arrest by peace officer without warrant
A peace officer may without warrant arrest any person –
. . .
(
q
) who is reasonably suspected of having committed an act of
domestic violence as contemplated in section 1 of the Domestic
Violence
Act,1998, which constitutes an offence in respect of which
violence is an element.’
The definition of ‘domestic violence’ in that Act
includes physical abuse and emotional, verbal and psychological
abuse. What Booi saw himself, and what MrsKatise and Sizani reported,
clearly amounted to domestic violence of which violence was
an
element.
[10] Unfortunately Katise’s claim was confused by the
introduction of the lapsed interim protection order as a reason why
the police had not properly exercised the discretion to arrest
without warrant. The particulars stated, amongst other things, that
Marangule had ‘failed to exercise his discretion properly in
that the Plaintiff should never have been arrested at all had
the
Arresting Officer taken due account of all the relevant circumstances
and in particular that the interim protection order had
been
discharged in June 2008 and that no protection order existed at the
time of the arrest’.
[11] Rorke AJ regarded this factor as decisive of the question
whether the arrest was unlawful. He said that had Marangule
considered
the content of the file that the police had, he would have
realized that the protection order had not been confirmed, and thus
did not meet the requirement for a lawful arrest without a warrant.
Marangule, said the court, was ‘overly zealous’
in
exercising powers he did not have. The arrest without warrant, and
ensuing detention, were thus unlawful and Katise was entitled
to
claim damages.
[12] The high court was not persuaded by the Minister that the police
had acted lawfully in terms of
s 3
of the
Domestic Violence Act. That
section provides that a peace officer may, at the scene of an
incident of domestic violence, without warrant ‘arrest any
respondent’ (defined as a person who is in a domestic
relationship with a complainant and who has committed or allegedly
committed an act of domestic violence against the complainant) ‘whom
he or she reasonably suspects of having committed an
offence
containing an element of violence against a complainant’.
[13] Although Katise’s conduct falls squarely within the ambit
of this section, the high court considered that the Minister
had not
pleaded reliance on it, and the defence was raised at a late stage
during the course of the trial. Counsel for Katise argued
that had he
known that the Minister would rely on the section he would have
cross-examined differently. Rorke AJ accepted this
argument, and
added that the section envisaged that the arrest without warrant ‘may
only occur at the scene of the incident
and not sometime thereafter.’
Further, he added, the ‘circumstances and exigencies’
ascertained after investigation
and ‘critical analysis’
had to demand an immediate arrest. Booi had made no such
investigation or analysis and thus
reliance on
s 3
was misplaced.
[14] I do not understand the section, on its plain meaning, to
require an arrest at the scene of the domestic violence only after
investigation and analysis. The stabbing of MrsKatise, and threats to
injure her with a spade, are self-evidently acts of domestic
violence. It is true, however, that Katise was arrested only after he
had been treated in hospital and then brought to the police
station.
But in any event, the conduct of Katisefalls within the ambit of
s
40(1)(
q
) of the Criminal Procedure Act.
[15] As to the argument that no reliance was placed on that section,
or on
s 3
of the
Domestic Violence Act, this
court has repeatedly
said that if the evidence adduced at the trial covers the particular
issue then the court is not bound by
the pleadings. (See M
inister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) para
22.)In my view, the evidence clearly demonstrated that Katise was
guilty of committing acts of domestic violence. That
was enough to
make the arrest without warrant lawful under
s 40(1)(
q
)
of the Criminal Procedure Act. (I see no reason why it would also not
be lawful under s 40(1)(
b
) which gives a peace officer the
power to arrest without warrant where he or she reasonably suspects
that a person has committed
an offence listed in Schedule 1 of the
Act, which includes assault when a dangerous wound is inflicted.) In
any event, the pleadings
do refer to offences other than the breach
of a protection order. While somewhat vague, the Minister’s
plea, which also unfortunately
refers to a breach of the order, also
stated that MrsKatise’s life was clearly in danger and that the
police had to take
steps to protect her ‘life and limb’.
That was sufficient to allow reliance on s 40(1)(
q
).
[16] In my view the
Domestic Violence Act adds
to the protection
offered to a victim of an offence like assault by the common law and
the Criminal Procedure Act. It does not
detract from it, which would
be the effect of not permitting an arrest without warrant where the
complainant has once sought protection
under that Act. The existence
or otherwise of the interim protection order could not mean that in a
clear case of violent abuse
of a complainant the police could not
arrest the perpetrator in order to protect her or him.
[17] As to the question whether Marangule exercised his discretion
properly, all that is required is that he acted in good faith,
rationally and not arbitrarily. In
Minister of Safety and Security
v Sekhoto
2011 (5) SA 367
(SCA) para 39 Harms DP said peace
officers are ‘entitled to exercise their discretion as they see
fit, provided that they
stay within the bounds of rationality. The
standard is not breached because an officer exercises the discretion
in a manner other
than that deemed optimal by the court. A number of
choices may be open to him, all of which may fall within the range of
rationality.
The standard is not perfection or even the optimum,
judged from the vantage of hindsight – so long as the
discretion is exercised
within this range, the standard is not
breached.’
[18] I thus find that the arrest of Katise was based on a reasonable
suspicion that he had committed acts of domestic violence
against his
wife and was accordingly lawful. And once his continued detention was
authorized by a magistrate, as it was, that was
also lawful. Katise’s
claim should have been dismissed.
[19] Katise did not oppose the appeal and was not represented in this
court. However, his attorneys were notified of the appeal
and its set
down.
[20] 1 The appeal is upheld with costs.
2 The order of the high court is replaced with:
‘The plaintiff’s claim is dismissed with costs.’
_____________
C H Lewis
Judge of Appeal
APPEARANCE:
For
the Appellant: N J Sandi
Instructed
by:
Mili
Attorneys, Grahamstown
Webbers
Attorneys, Bloemfontein
For the Respondent: No Appearance