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[2016] ZAGPPHC 789
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Kruger v Minister of Police (15/2/2016) [2016] ZAGPPHC 789 (18 February 2016)
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IN
THE GAUTENG DIVISION HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Case
Number: A57/15
DATE:
18/2/2016
In
the matter between:
FRANCOIS
CARL
KRUGER
............................................................................
APPELLANT
AND
THE
MINISTER OF
POLICE
.........................................................................
RESPONDENT
JUDGMENT
MOLEFE
J
[1]
This is an appeal against the whole judgment of Magistrate B Matlape
handed down on 19 December 2014 in the Pretoria North Magistrate
court. The appellant's claim for unlawful arrest and detention was
dismissed by the court a
quo,
each party ordered to pay each
own costs. The complainant was the second defendant at the trial but
the court a
quo
granted absolution against her.
[2]
The appellant's cause of action against the respondent is unlawful
arrest and detention. The appellant averred that he was arrested
without a warrant with an alternative plea that if the arrest was
effected with a warrant, that the arresting officer did not comply
with the requirements of the
Domestic Violence Act,
Act
116 of
1998
("the
Act'). As a
result of the arrest and detention, the appellant claimed R100 000,
00 damages from the respondent.
[3]The
following facts are common cause:
3.1
The complainant (in the court a
quo
the second defendant) Ms
Chrisna Kruger, appellant's sister, had applied for and was granted
an interim protection order ("the
order") in terms of
section 5 (2) of the Act against the appellant on 5 May 2010 at the
Pretoria North Magistrate Court;
3.2
The appellant, the complainant and their other sibling are co-owners
of the property at [8…] Stratia Lane, Dorandia,
Pretoria North
("the property"). The complainant and her two minor sons
resided in the main house of the property at
the time when the order
was granted;
3.3
The order contained the following prohibition:
".
. . . . om
nie die klaer of enige kind wat gewoonlik in die
gedeelte woning te Stratialaan
[
8..],
Dorandia,
Pretoria
Noord
woon
of
gewoon
het,
te
verhoed
om
die
gedee/de woning
of
enige
deel
daarvan
binne
te
gaan
of
daarin
te
vertoef
nie. . . . "
3.4
The order was served on the appellant on 6 May 2010 at approximately
06h30 by Warrant Officer Holtzhausen. The appellant was
arrested by
W/0 Holtzhausen, at the property on
6
May 2010 at
approximately 18h30 for allegedly contravening the order. W/0
Holtzhausen, a member of the South African Police Services
("SAPS"),
acting within the course and scope of his employment arrested the
appellant on a charge of contempt of the
court order, being the
interim protection order.
[4]
The respondent in its plea, admitted that the appellant was arrested
on 6 May 2010, by a member of the SAPS without a warrant,
and further
pleaded that the appellant's arrest was effected by a peace officer
in terms of section 3 of the Domestic Violence
Act, and as such
was lawful.
[5]
Warrant Officer Holtzhausen testified on behalf of the respondent and
his testimony was that he served the order on the appellant
on 6 May
2010 at approximately 06h30. Later on the same day, he received a
call from the complainant that the appellant had
changed the
locks to the house, thereby preventing her and her children from
entering the property and thereby contravening the
interim protection
order. On his arrival at the premises, Holtzhausen was unable to
unlock the house with the keys which the complainant
had. He then
summoned the appellant to come to the property and after the
appellant had unlocked the house, he arrested him for
contempt of
court.
W/0
Holtzhausen further testified that he arrested the appellant before
he obtained a sworn affidavit of the complainant for the
appellant's
contempt of court and that the reason he arrested the complaint was
that he did not comply with the order. Hotzhausen
did not deny the
appellant's version that the complainant was in possession of the
keys to the house and that when the arrest was
effected the house was
not locked.
[6]
The learned magistrate's reasons for making a finding that the arrest
and detention were lawful were
inter alia
that:
".
. . . as
soon
as
the plaintiff was served with the interim
protection order
he was supposed to have removed the
cause of the complaint. Plaintiff
was supposed to have
put back the original locks of the house to allow
the
erstwhile 2
nd
defendant and her children
access into the house. Plaintiff failed to do
so
and in this
court's opinion he committed an act of domestic
violence"
[1]
[7]
Section 40 (1) (q) of the
Criminal Procedure Act, Act 51 of 1977
("CPA'J
provides
that:
"(1)
A
peace officer
may without
a
warrant
arrest any
person
-
a)
- - - - - - -
b)
- - - - - - -
c)
- - - - - - -
(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".
[8]
Although the respondent in its plea did not rely on
section 40
(1)
(q) of the CPA, I am also of the opinion that the police officer
could not have acted in accordance with section
40
(1) (q) as there was no imminent harm to the complainant and no
act
of domestic violence was contravened by the plaintiff at the
scene of the incident.
[9]
The definition section of the
Domestic Violence Act
defines
domestic violence as
"where
such
conduct
harm,
or
may
cause
eminent
harm
to
the
safety,
health
or
we/I-being
of the
complainant".
In
Seria v Minister of Safety and Security and Others 2005 (5) 130 C,
it was stated that
"imminent
harm"
is:
"It
is the danger of harm of
a
certain degree of immediacy that
activates the
protection
. . .
that
is
to harm
which
is
impending, threateningly ready to
overtake or
coming on
shortly".
[10]
Section 3
of the
Domestic Violence Act
states
the following:
"3.
Arrest by peace officer without
warrant
A
peace
officer
may
without
a
warrant arrest any respondent
at the scene
of
an incident of domestic violence whom he or she
reasonably suspects of
having committed an offence containing
an element of violence against
the complainant".
[11]
An interim protection order must in terms of the provisions of
section 5 (3) (a) of the Act be served on the respondent in
the
prescribed manner. In terms of section 5 (3) (b) of the Act, a copy
of the application, the record of any additional evidence
considered
by the court and the interim protection order must be served on the
respondent. In terms of sections 5 (3); (6) and
(13) of the Act, as
well as Regulation 15, the interim protection order must be served by
the Clerk of the Court, the Sheriff or
a Peace Officer according to
the Rules of the Magistrate's Court.
I
am satisfied that in
casu,
the interim protection order
was prior to the appellant's arrest, served on the appellant in the
prescribed manner.
Enforcement
of an interim protection order
[12]
Section 5 (7) of the Act provides that the original warrant of arrest
must be served by the Clerk of the Court on the complainant
upon
service or upon receipt of a return of service of an interim
protection order.
[13]
Section 8 (4) (a) of the Act reads as follows:
"A
complainant may hand a 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 section (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)".
c)
if the member concerned is of the opinion that there are insufficient
grounds for arresting the Respondent in terms of para (b),
he or she
must forthwith hand a written notice to the Respondent which -
i)
- - - - - - - -
ii)
calls upon the Respondent to appear before a Court, and on the date
and the time specified in the notice; on a charge of committing
the
offence referred to in section 17 (a)".
[14]
Appellant's counsel
[2]
submitted
that the learned magistrate misdirected herself
in finding
that it was the duty of the court
a
quo
to
determine if the arrest was based on a reasonable suspicion that a
schedule
1
was
committed.
Iagree with
counsel's
submission
in this
regard.
[15]
The question to be determined by this Court is whether the respondent
satisfied the
onus
to prove that the arrest was indeed lawful.
I have considered the evidence of Warrant Officer Holtzhausen that he
arrested the appellant
for contempt of court as the appellant did not
comply with the interim protection order. Holtzhausen did not however
deny the appellant's
version that when he was arrested, the
complainant was in possession of the house keys, that the house was
not locked and that
the complainant had full access to the house.
[16]
In
Greenberg v Gouws and Another
2011 (2) SACR 389
(GSJ)
at
paragraph 25 to 29, the Court held that:
"Reasonable
grounds' in terms of
s 8
of the
Domestic Violence Act empowers
the
court which issues
a
protection order pursuant to domestic
violence to authorize
a warrant of arrest against the
person whom a protection order is directed. The warrant of arrest is
generally suspended but if
it appears to a police officer that
there are reasonable grounds to suspect that the complainant
may suffer imminent harm as a result of the breach of the protection
order, the police official may lawfully
arrest the
person who is in breach of the protection order. The suspicion of the
arresting officer will be reasonable if it is objectively
sustainable
(S B (4)
(b) ) of Act 116
of
1998".
[17]
It is clear that there must be physical violence inflicted or
imminent before an arrest can be effected. In
Minister
of
Safety
and Security v
M (CA
350/2012)
2014
ZAECG HC 58
delivered on 10 July 2014, the Court held:
"[24]
One must bear in mind that the requirements of S 40 (1) (q) is not
just
a
suspicion that an act of domestic violence as
contemplated in
S1
of
the
Domestic Violence Act has
been committed, but that the act of domestic violence must constitute
an offence in respect of which violence is an element.
The
violence referred to in the subsection must be physical violence.
If
a
suspicion that merely an act of domestic violence
as contemplated in
S 1
of the
Domestic Violence Act has
been
committed
was sufficient, there would be no need for
the qualification that the act
must constitute an
offence of which violence is an element. Bearing in mind that the
purpose of arrest is to bring the arrested
person before
a
court,
there
must be a suspicion that a legally recognised
criminal offence has been committed".
[18]
An act of domestic violence in the form of emotional abuse, as in
casu,
does not constitute an offence containing an
element of violence against the complainant. In
Minister
of
Safety
and
Security
v
M
supra
at
paragraph
25,
it was held:
"As
was submitted on behalf of the respondent, the acts of domestic
violence in that definition, which constitute an offence
in respect
of which violence is an element are physical abuse and sexual abuse.
It was submitted on behalf of the appellant that
there was
information that emotional abuse had occurred.
An
act of domestic violence in the form of emotional abuse would however
not suffice for the purposes of S 40 (1) (q) of the Act.
Nor would it
suffice for the purposes of
S 3
of the
Domestic Violence Act
. . ."
[19]
The respondent in this case also relied on emotional abuse which do
not comply with the requirements of physical violence and
which also
is not an offence on which a police officer would arrest the
appellant. There was no evidence that there were reasonable
grounds
for the arresting officer to suspect that the complainant may suffer
imminent harm as a result of the appellant's breach
of the protection
order. At the time when the arrest was effected, the appellant had
handed over the keys to the property to the
complainant who then had
full access to the house. The alleged suspicion by the arresting
officer of an emotional abuse, was
in casu
not objectively
sustainable.
[20]
It is my opinion that the respondent did not satisfy the onus to
prove that the arrest and subsequent detention of the appellant
were
justified. The court a
quo
misdirected itself in finding that
the arrest and detention were lawful. The appeal should therefore be
upheld.
Quantum
of Damages
[21]
When assessing damages in matters such as the present, the evaluation
of the
personal circumstances of the plaintiff, the circumstances around the
arrest
and
the nature and duration of the detention is
taken into
account
[3]
.
The
testimony of the appellant about his personal experiences and
conditions that prevailed in the police cells and what effect
the
arrest had on him is taken into account.
[22]
The appellant was 40 years old at the time of his arrest and is a
landscape designer. He was arrested in front of his family
members
and was detained in the police and court cells at the police station
for (17) seventeen hours. His stay in the cells was
unbearable as it
was cold. He was humiliated and degraded by the arrest.
[23]
The purpose of an award for general damages in the context of a
matter such as the present is to compensate the claimant for
deprivation of personal liberty and freedom as well as the mental
anguish and distress.
In
Minister of Safety and Security v Tyulu
2009 (5) SA 85
(SCA) at
par
26,
Bosielo AJA (as he was then), emphasized
that the primary purpose is
"not to enrich the claimant
but to offer
him or
her
some
much-needed
solatium for his
or her
injured
feelings".
[24]
Although the determination of an appropriate amount of damages is
largely a matter of discretion, some guidance can be obtained
by
having regard to previous awards made in comparable cases.
In
Rudolph and Others v Minister of Safety and Security
2009 (5) SA
94
(SCA),
the plaintiff was unlawfully arrested on
Saturday evening and released on Monday morning and was awarded the
current value of R89
000-00.
In
Fubesi v Minister of Safety and Security
case no 680/2009
(EC), Grahamstown, the plaintiff who was unlawfully arrested and
detained for three(3) days was awarded damages
in the current value
of R106 000-00.
[25]
I take into account the circumstances of the appellant's arrest, the
duration of the detention, the personal circumstances
of the
appellant and the awards made in previous comparable cases. The
indignity of being confined in a police cell and being deprived
of
liberty must have had a negative effect on the appellant. Having
taken into account all the circumstances of this case, I deem
R40
000-00 to be a fair and just amount of damages for the appellant.
[26]
In the result the appeal is upheld and the order of the court a
quo
is replaced with the following order:
26.1
1judgment
is
granted in favour of the appellant;
26.2
the respondent
is
ordered to pay the appellant an
amount of
R40 000-00 for damages;
26.3
interest on the amount at the prescribed rate from date of
judgment to date of payment;
the
respondent to pay the
costs
of the action and the
costs
of
the appeal.
And
it is so ordered
.
…...................................................................................
D S MOLEFE
Judge
of the High Court
I
agree..............................................................................................................................
T S I
agree
...................................................................................................
KEKANA
Judge
of the High Court
APPEARANCES:
Counsel
on behalf of Appellant
…..............
:
…...
Adv. M Bouwer
Instructed
by.
..............................................
:
.......
Potgieter,
Penzhorn & Taute Inc.
Counsel
on behalf of Respondent
…...........
:
.......
Adv.
M Bothma
Instructed
by.
...............................................
:
......
State
Attorney
Date
Heard
...................................................
:
......
2
February 2016
Date
Delivered
..............................................
:
.....
18
February 2016
[1]
Index Volume page 24 par 2
[2]
Advocate M Bouwer
[3]
See Ngcobo v Minister of Police
1978 (4) SA 930
(D) at 935 B-F