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[2014] ZAGPPHC 304
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Botha v Minister of Police and Another (3687/10) [2014] ZAGPPHC 304; 2014 (2) SACR 601 (GP) (19 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
CASE NO: 36871/10
DATE: 19 MAY
2014
In the matter
between:
DIEDERICK
JAMES BOTHA
….....................................................................................................
Plaintiff
and
MINISTER
OF POLICE
…...................................................................................................
First
Defendant
CONSTABLE
MHLONGO
…..........................................................................................
Second
Defendant
JUDGMENT
TEFFO.
J
:
[1] The plaintiff
sued the defendants for damages for unlawful arrest and detention.
This claim arises from an incident which took
place on 2 April 2010
when the plaintiff was arrested without a warrant at the Stabilis
Treatment Centre by the second defendant,
a member of the first
defendant, and caused him to be detained at Wonderboom police station
from 2 April 2010 to 6 April 2010 for
allegedly contravening a
domestic violence protection order that was issued against him.
[2] The charge
against him was subsequently withdrawn.
[3]
Although the arrest of the plaintiff was conceded, the defendants
dispute that his arrest was unlawful and pleaded that it was
effected
in terms of the provisions of section 8(4)(b) of the Domestic
Violence Act 116 of 1998
(“the
Act’).
[4] The defendants
also dispute that the detention of the plaintiff was unlawful.
[5] It was also
alleged that the plaintiff was refused food and medical attention for
30 hours of his detention. The defendants
dispute the allegations.
[6] It is common
cause between the parties that at the time of the arrest and
detention of the plaintiff, the second defendant was
acting in the
course and scope of his employment with the first defendant.
THE EVIDENCE
[7] Although the
defendants had the duty to begin to prove that the arrest of the
plaintiff was unlawful, the parties agreed the
plaintiff should first
adduce evidence.
[8] The plaintiff
testified that he was initially charged for the assault of the
complainant who is his nephew and presently his
ex-wife’s
boyfriend. As a result of this incident an interim protection order
was issued against him but it was never served
on him. He did not
know about it until on the date of his arrest. In terms of the
interim protection order the court ordered him
not to assault, nor
abuse the complainant physically, emotionally, financially and
verbally. The court further ordered him not
to enter the
complainant’s residence at 514 Casper Laan, Eloffsdal,
Pretoria, not to enter the complainant’s place
of employment at
No 1200 Startkey Laan, Waverley and that he should not commit any of
the following acts, to wit, no threats, no
damage to property.
[9] He was arrested
on Friday, 2 April 2010 at 12h00 while he was at the Stabilis
Treatment Centre at the eating place. As he was
at the eating hall
three police officers arrived in two different motor vehicles. The
second defendant arrested him and advised
him of his constitutional
rights. When he asked him why was he arresting him, he told him that
he has contravened a protection
order. At that time he was standing
on the queue between the reception and the kitchen and there were a
lot of people around him.
He was then put at the back of one of the
police vehicles and they drove directly to the police station where a
docket was opened
against him and he was locked up in the cells. He
was with other people in the same cell and the first two days they
did not get
food.
[10] He stated that
from Friday, 2 April 2010 he was taken to court on 6 April 2010
because he was arrested during Easter weekend.
He further testified
that he told the second defendant that he was on medication at the
time and still on his rehabilitation programme
at the Stabilis
Treatment Centre. Furthermore that he did not see the interim
protection order which he was informed he had contravened
and that he
was adamant that his arrest was false. The second defendant then
informed him that if he was falsely arrested, he was
going to be a
rich man. He appeared in court on Tuesday, 6 April 2010 and the
charges against him were withdrawn. He subsequently
returned to the
Stabilis Treatment Centre to complete his course but he did not do
the full course. He then proceeded to Denmar
where he managed to
complete the full course.
[11] The conditions
in the cells were bad in that the cells were dirty and smelling, the
blankets were smelling urine and the first
two days they did not
drink and have food. He was depressed and felt like he was humiliated
in front of the people at the Stabilis
Treatment Centre.
[12] After the
psychological treatment and assistance he got, he feels better. He
was psycho-legally evaluated by Dr Elsabe Swanepoel
after being
referred to her by his attorneys with regard to his personality and
emotional functioning, possible traumatic symptoms
he is suffering
due to unlawful arrest and incarceration and possible future
functioning. Dr Swanepoel then compiled a report which
was admitted
into the record as evidence.
[13] He stated that
the initial charge that led to the interim protection order has been
disposed off in that he was convicted after
pleading guilty and
sentenced to two years imprisonment, six months of the sentence was
suspended for five years on condition that
he was not convicted of a
similar offence during the period of suspension. He did not give
details of the date when he was convicted
and sentenced.
[14] Under
cross-examination he testified that on 2 April 2010 he was not
meeting the second defendant for the first time. Although
he could
not say when was the first time he met with the second defendant, he
conceded that the second defendant had knowledge
of the initial
criminal charge against him and that he interacted with him during
the investigation of the initial charge. He also
conceded that the
complainant in the initial and second charge is the same person and
that the second defendant was the investigating
officer in both
matters. He was referred to the interim protection order against him
and he maintained that he never signed it
as he did not receive it.
He also conceded that he knew where the complainant resided and that
he once shot at him and he and his
minor child got injured in the
process.
[15] He disputed
that the second defendant phoned him on 29 March 2010 and spoke to
him about a breach of the protection order.
He stated that he cannot
remember him calling him to come to the police station. He also
disputed that he promised the second defendant
that he would come to
the police station the following day. He disputed that he was at
Eugene Marais hospital in April 2010.
[16] He conceded
that he was seen by other experts, viz, Dr L P Steenkamp at Denmar
Psychiatric hospital and Dr Rene Cruickshank
other than Dr Swanepoel
who compiled the report. He admitted that on 28 March 2010 he stopped
his motor vehicle outside the street
next to the complainant’s
residence and high rafted its engine but denied that a neighbour
chased him away. He maintained
that he drove away on his own. He
explained that the reason he did what he did was because he wanted to
talk to the complainant
and his ex-wife but they did not come out.
They later came out as a result of the noise until at the front door.
[17] He conceded
that he knew that they were refusing to talk to him. He also conceded
that he shot at the complainant while outside
his residence
previously but was not surprised that they did not come out when he
was revving his vehicle outside his residence.
He disputed that he
revved his vehicle outside the complainant’s residence to
intimidate him and his ex-wife and stated that
he only wanted to get
their attention.
[18] Under
re-examination he disputed that he breached the interim protection
order as alleged.
[19] Constable
Leonard Mhlongo testified on behalf of the defendants. He is
currently a member of the South African Police Service
(“SAPS”)
stationed at Wonderboom police station where he was also stationed in
2010. He was six years in the SAPS at
the time of the incident in
2010. He arrested the plaintiff twice in 2010 for two different
cases. The first case was for attempted
murder and the second one was
for contempt of court. He arrested the plaintiff on the second case
at Stanvas in Villiera (the Stabilis
Treatment Centre) on 2 April
2010 in the company of five police officers. He brought other police
officers along because he knew
the plaintiff as an aggressive person.
[20] On 28 March
2010 the plaintiff revved his motor vehicle in front of the
complainant’s house. The complainant then felt
unsafe as a
result. He had with him background information about what happened
previously between the plaintiff and the complainant
and then
arrested the plaintiff. Between the period of the incident that led
to the arrest of the plaintiff, viz, 28 March 2010,
and the date of
his arrest, viz, 2 April 2010, he phoned the plaintiff and told him
about the second case that was opened against
him and the plaintiff
agreed that he would come and see him the following day. He did not
come. He phoned him and enquired why
he did not come. He could not
remember the response that the plaintiff gave him but he informed him
that because he did not come
to see him as agreed, he was following
his tracks.
[21] As he was
communicating with the complainant and his father, he got information
that the plaintiff was at Eugene Marais hospital.
He indeed went to
Eugene Marais hospital, entered through the main entrance, but was
later informed that the plaintiff had escaped
with another exit. He
later got to know that he was at the Stabilis Treatment Centre where
he went to arrest him.
[22] When he
arrested him he was not aggressive but was also not cooperative. He
managed to arrest him because he was in the company
of other police
officers.
[23] When asked what
offence did he commit, he said by arriving at the complainant’s
residence, revving his motor vehicle,
driving recklessly at the
complainant’s residence, the plaintiff made him to believe that
he was abusing the complainant’s
rights. The complainant and
his girlfriend told him that because of his previous conduct which
led to the first case, when he went
to their house for the second
time, they felt unsafe. They felt traumatised about the first case in
that he shot at the complainant
and their minor child got injured in
the process and they were afraid of him. As a result he concluded
that the plaintiff should
be arrested and justice should take its
course.
[24] When told that
the plaintiff says that he was never served with the interim
protection order, he said the interim protection
order that he sees
is not complete. He stated that it should have a portion where the
suspect acknowledged receipt of it. He further
confirmed that when he
received the docket as far as he can recall there was a statement by
the complainant and a copy of the interim
protection order. He was
then referred to page C17 and explained that the offence is described
as a violation of a protection order.
He stated that the
complainant’s statement was taken by Warrant Officer (W/O)
Bruwer and that when he decided to charge the
plaintiff, he was
satisfied that an offence in terms of the
Domestic Violence Act had
been committed.
[25] Under
cross-examination he conceded that the proof of service of the
interim protection order cannot be found in Bundle C.
When told that
it was never put to the plaintiff that the protection order was
served upon him when he testified that he did not
receive it, he
stated that what he knows was that the interim protection order was
served upon the plaintiff and that the proof
thereof was in the
docket. He also conceded that the warrant of arrest was not there.
When it was put to him that in terms of the
provisions of
section
8(4)(b)
of the
Domestic Violence Act, he
could not arrest the
plaintiff for breach of the interim protection order if there was no
proper service of the protection order
against him he maintained that
the proof of service was in the docket but as he was testifying it
was not there. He was also told
that he could not have arrested the
plaintiff because there was no warrant. His response was that if the
warrant was not there,
it was obvious that the arrest was unlawful.
[26] The issue for
determination is whether the arrest and detention of the plaintiff
was lawful entitling him to a claim of damages.
[27]
Section 8 of the Act states:
“
(1)
Whenever a court issues a protection order, the court must make an
order -
(a) authorising
the issue of a warrant for the arrest of the respondent in the
prescribed form;
(b)
suspending the execution of such warrant subject to compliance with
any prohibition, condition, obligation or order imposed
in terms of
section
7.
(2) The warrant
referred to in subsection (1)(a) remains in force unless the
protection order is set aside, or it is cancelled after
execution.
(3) The clerk of
court must issue the complainant with a second or further warrant of
arrest, if the complainant files an affidavit
in the prescribed form
in which it is stated that such warrant is required for his or her
protection and that the existing warrant
of arrest has been -
(a) executed and
cancelled; or
(b) lost or
destroyed.
(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).
(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 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."
[28] Section 5 of
the Act reads:
“
(3)
(a) An interim
protection order must be served on the respondent in the prescribed
manner and must call upon the respondent to show
cause on the return
date specified in the order why a protection order should not be
issued.
(b) A copy of the
application referred to in section 4(1) and the record of any
evidence noted in terms of subsection (1) must be
served on the
respondent together with the interim protection order.
(6)
An interim
protection order shall have no force or effect until it has been
served on the respondent. ”
[29]
In
Serial v The
Minister of Safety and Security and others
[2004]
JOL 13101
(C) the following remarks were made:
“
The
reason why the Act hinges the validity of an interim protection order
upon its service and not so for a final protection order,
I would
venture, goes to the nature of an interim as opposed to a final
interdict. For as with an interim interdict, an interim
protection
order is the first step towards procuring a (final) protection order.
In keeping with the principle that a person is
entitled to notice of
legal proceedings against him or her, the Act ensures that the
interim protection order which commences legal
proceedings is not
valid until notice thereof is given by its service upon the
respondent. The Act ensures also that in the absence
of sen/ice of an
interim protection order, subsequent proceedings cannot ensue,
prescribing as it does that proper service of an
interim protection
order is a prerequisite for the issuing of a final order."
[30]
It is trite that the
onus
rests
on a defendant to justify an arrest. As Rabie CJ explained in
Minister of Law
and Order and others v Hurley and Another
1986
(3) SA 568
(A) at 589E-F:
“
An
arrest constitutes an interference with the liberty of an individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another should bear the
onus of proving that his action
was
justified in law."
[31] According to
the defendant the arrest of the plaintiff was justified in that it
was effected in terms of the provisions of
section 8(4)(b) of the
Act.
[32] In terms of the
provisions of section 8(4)(b) of the Act if a respondent against whom
a protection order has already been issued
(based on previously
committed acts of domestic violence), contravenes the order and
commits or threatens acts of domestic violence
that could cause a
complainant imminent harm, the complaint needs immediate action by
the police. There is no time to approach
court. The police official
does have a discretion. He or she is only obliged forthwith to arrest
the respondent, if it appears
that there are reasonable grounds to
suspect that imminent harm to the complainant may result from the
alleged breach. In considering
whether imminent harm may follow
several factors as provided for in subsection (5) have to be taken
into account. The police official
may also come to the conclusion
that there are insufficient grounds for an arrest and must then
notify the respondent to appear
before court (see Omar v Government,
RSA and others
[2005] ZACC 17
;
2006 (2) BCLR 253
(CC)).
[33] The provision
in section 8(1) referred to supra for a warrant linked to the issuing
of a protection order is clearly intended
to provide a mechanism to
ensure compliance with protection orders and to protect complainants
against further domestic violence.
[34]
It is common cause between the parties that the plaintiff was
arrested without a warrant. The provisions of section 8 of the
Act
referred to
supra
clearly
provide that a warrant must be authorised simultaneously with the
issuing of the interim protection order the execution
of which must
be suspended subject to compliance with any prohibition, condition,
obligation or order imposed in terms of section
7. The warrant
referred to remains in force unless the protection order is set aside
or cancelled after execution. In terms of
the provisions of section
4(a) of the Act, the 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. No evidence was led
as to the reasons why the plaintiff was
arrested without a warrant
where the provisions of section 8 of the Act were relied upon. The
provisions of section 8(1) of the
Act with regard to the
authorisation of the warrant simultaneously with the issue of the
protection order are peremptory. Although
the police have authority
to arrest without a warrant no evidence was led that the second
defendant was justified in arresting
the plaintiff without a warrant.
Under cross-examination when it was put to the second defendant that
the arrest of the plaintiff
was unlawful as it was effected without a
warrant, he himself conceded that fact. He specifically said
“
if
the warrant is not there then the arrest is unlawfuf'.
[35] It was
submitted on behalf of the defendants that members of SAPS are
empowered by section 3 of the Act to arrest without a
warrant.
Section 3 of the Act provides that 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
a complainant. It
was never the evidence of the defendants that the plaintiff was
arrested at the scene of an incident of domestic
violence. This
section does not have anything to do with section 8. Reliance by the
defendants on section 3 of the Act is therefore
misplaced. A
submission was also made by the defendants’ counsel that
section 5 of the Act empowers the court to issue an
interim
protection order even if the respondent has not been given notice of
the proceedings. This submission does not have merit
taking into
account that in terms of section 5(3)(a) once issued the interim
protection order must be served upon the respondent.
[36] The plaintiff
maintained throughout his evidence that he was never served with an
interim protection order which he is alleged
to have breached. It was
never put to him while he was still in the witness stand that what he
was saying was not the truth. It
was only when the second defendant
adduced evidence that he stated that he had served the interim
protection order on the plaintiff.
The second defendant could not
furnish proof of service thereof. He contended in his evidence that
the copy of the interim protection
order that was included in the
bundle of documents, viz, Annexure “C” was not complete
and that as far as he can recall
the proof of service was in the
docket. This evidence was not of assistance to the defendant’s
case for the reasons advanced
supra. The plaintiff gave a good
impression to the court. His evidence was straight to the point and
it was not shaken during cross-examination
unlike that of the second
defendant who ultimately conceded under cross-examination that the
arrest of the plaintiff was unlawful.
[37]
The
onus
rest
on the defendants to prove the lawfulness of the plaintiff's arrest
and detention. It was strange that the defendant could
not furnish
proof of service of the interim protection order if it was indeed
served upon the plaintiff.
[38] The failure of
the defendants to provide proof of service of the interim protection
order confirms the plaintiff’s evidence
that he was never
served with the order and only became aware of it at the time of his
arrest.
[39] An interim
protection order has no force or effect before service has taken
place. The suspended warrant of arrest can only
be executed once a
police official has received an affidavit by the complainant stating
that the protection order has been contravened.
An order that has not
come into force and has no effect cannot be contravened. This means
that the fact that the interim protection
order was not served upon
the plaintiff renders it null and void and therefore he cannot be
said to have contravened an order that
never existed.
[40] I therefore
find that the arrest and the subsequent detention of the plaintiff
for allegedly breaching an interim protection
order was unlawful and
that the plaintiff is therefore entitled to damages suffered as a
result thereof.
[41] I accordingly
do not find it necessary to consider whether the second defendant
exercised his discretion properly when he arrested
the plaintiff.
QUANTUM
[42] The plaintiff
initially claimed damages in this action in the amount of R400
000,00. When the matter was argued counsel for
the plaintiff moved an
application to amend prayer 1 of the plaintiff’s particulars of
claim to read that the plaintiff claims
payment of an amount of R250
000,00. No objection was made and the amendment was accordingly
granted. After referring to comparative
case law counsel for the
plaintiff further submitted that the award that can fairly compensate
the plaintiff for his damages should
be in the range of between R180
000,00 and R200 000,00.
[43] In assessing
damages the court is enjoined to take into consideration all the
relevant factors in that particular case. Awards,
will therefore,
vary from case to case depending on the circumstances of each case.
[44]
In
Minister of
Safety and Security v Seymour
2006
(6) SA 320
at 326 para [20] Nugent JA remarked as follows:
“
Money
can never be more than a crude solatium for the deprivation of what,
in truth, can never be restored and there is no empirical
measure for
the loss. The awards I have referred to reflect no discernible
pattern other than that our courts are not extravagant
in
compensating the loss. It needs also to be kept in mind that when
making such awards there are many legitimate calls upon the
public
purse to ensure that the other rights that are no less important also
receive protection."
[45]
In
Protea
Assurance Co Ltd v Lamb
1971
(1) SA 530
(A) at 534H-535A Potgieter JA said the following in
relation to general damages for bodily injury:
“
It
is settled law that the trial judge has a large discretion to award
what he in the circumstances considers to be fair and adequate
compensation to the injured for these sequelae of his injuries.
Further this court will not interfere unless there is a ‘substantial
variation’ or as it is sometimes called a ‘striking
disparity’ between what the trial court awards and what this
court considers ought to have been awarded.''
The court went on to
say:
“
Comparable
cases, when available, should rather be used to afford some guidance
in a general way, towards assisting the court in
arriving at an award
which is not substantially out of the general accord with previous
awards in broadly similar cases, regard
being had to all the factors
which are considered to be relevant in the assessment of general
damages. At the same time it may
be permissible, in an appropriate
case, to test assessment arrived at upon this basis by reference to
the general pattern of previous
awards in cases where injuries and
their sequelae may have been either more serious or less than those
in the case under consideration."
[46]
I have considered the amounts awarded in cases such as
Minister
of Safety and Security v Seymour
referred
to
supra
,
Seria v Minister
of Safety and Security,
2005
(5) SA 130
(C),
Rudolph
& Others v Minister of Safety and Security
2009
(2) SACR 271
(SCA),
Road
Accident Fund v Marunga
2003
(5) SA 164
(SCA), and all other cases referred to by the parties.
[47] The plaintiff
was arrested and detained in the police cells from 2 April 2010 at
13h00 and released on 6 April 2010. He had
spent approximately 3
1
/4
days in the cells. He described the conditions in the cells as bad in
that the cells were dirty and were smelling, the blankets
were also
smelling urine and that the first two days he did not drink and have
food. He was also denied medication. He stated that
he was depressed
and humiliated in front of the people at the Stabilis Treatment
Centre. As a result of his arrest he could not
complete his
rehabilitation at the Stabilis Treatment Centre. He had to re-do it
at Denmar. The plaintiff consulted a number of
experts before and
after consulting with Dr Swanepoel. From Dr Swanepoel’s report
it appears that the plaintiff had a number
of problems prior to his
arrest. His history reveals that he was involved in a motor vehicle
accident when he was four years old.
At the age of seven he also had
many bicycle accidents. In October 2010 to April 2011 he abused
alcohol, took his medication with
alcohol, started hallucinating and
this took 36 hours. As a result he was admitted at Denmar Psychiatric
hospital. He suffered
epileptic seizures in the dentist chair and
consulted Dr Steenkamp, another psychiatrist. He tried to commit
suicide twice and
in both instances, he was drunk.
[48] Dr Swanepoel
opined that the plaintiff’s problems, because of his past, have
not been effectively and appropriately addressed
but that he was
trying to deal with the traumas of such past events. She concluded
that the unlawful arrest and detention of the
plaintiff can certainly
be seen as a significant trauma in his life, adding to the challenges
that already existed which he is
unable to deal with.
[49] In the
circumstances I am of the view that the fair and reasonable
compensation to the plaintiff for his unlawful arrest and
detention
is an amount of R120 000,00.
[50] In the result I
make the following order:
50.1 The arrest and
detention of the plaintiff by the second defendant was unlawful.
50.2 Judgment is
granted in favour of the plaintiff against the first and second
defendants jointly and severally the one paying
the other to be
absolved in the sum of R120 000,00.
50.3
The first and second defendants are ordered to pay interest on the
amount of R120 000,00 from date of summons until date of
final
payment calculated at the rate of 15,5% per annum
tempore
morae.
The defendants are
further ordered to pay the costs of the action.
M J TEFFO
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
COUNSEL FOR THE
PLAINTIFF: M OLIVIER
INSTRUCTED BY:
SERFONTEIN ATTORNEYS
COUNSEL FOR THE
FIRST AND
SECOND DEFENDANTS: Z
P MAKONDO
INSTRUCTED BY: THE
STATE ATTORNEY
DATE OF HEARING: 16
MAY 2013
DATE OF JUDGMENT: 19
MAY 2014