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[2012] ZAKZDHC 12
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Khanyile v Minister of Safety and Security and Another (7079/08) [2012] ZAKZDHC 12; 2012 (2) SACR 238 (KZD) (27 January 2012)
1
IN THE KWAZULU NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO. 7079/08
In the matter between:
MS KHANYILE
…..........................................................................................
PLAINTIFF
and
MINISTER OF SAFETY AND SECURITY
….................................
FIRST
DEFENDANT
M GAMEDE
…...........................................................................
SECOND
DEFENDANT
JUDGMENT
Delivered 27 January
2012
MURUGASEN,
J.
[1] This is an action for damages for
unlawful arrest and detention.
[2] The plaintiff, Musawenkosi
Simphiwe Khanyile, instituted an action for damages for unlawful
arrest and detention in the sum
of R165 150 against the
defendants, the Minister of Safety and Security and Inspector Victor
Muzi Gumede (Gumede). The plaintiff
alleges that the warrant for his
arrest authorized in terms of Section 8 (1) (a) of the Domestic
Violence Act No 116 of 1998 (‘the
Act’) and issued for
violation of an interim protection order was invalid because the
complainant had not yet made a statement;
and that consequently,
there was “no basis” for his arrest by Gumede, who in
executing the warrant, acted in the course
and scope of his
employment with the first defendant. The plaintiff alleges further
that as a result of such unlawful arrest and
detention from 26
January 2007 to 27 January 2007, he suffered the damages aforesaid,
for which the first and second defendants
were jointly and severally
liable.
[3] The defendants contend that the
plaintiff was lawfully arrested and detained as the warrant of arrest
was duly authorized and
issued for the violation by the plaintiff of
an interim protection order. Although the defendants initially denied
that the plaintiff
was arrested before the complainant made a
statement, they subsequently admitted that the arrest of the
plaintiff was effected
before the statement was made. The defendants
nevertheless persist that the warrant was not invalid when executed
and that the
arrest and detention of the plaintiff was lawful. They
therefore deny that they are liable to the plaintiff as claimed, and
submit
that the plaintiff’s claim lies to be dismissed.
[4] As the issues of liability and
quantum were separated by consent, only the issue of liability lay
for determination by this
court.
Factual Background.
[5] An interim protection order in
terms of Section 5 (2) of the Act was granted on application by the
plaintiff’s girlfriend,
Hlakaniphile Zandile Ntshuntsha (‘the
complainant’) against the plaintiff under Case No 81/2007 in
the Durban Magistrate’s
Court on 5 January 2007.
[6] In terms of clause 3.1.2.1 of the
order, the plaintiff was ordered :
‘
3.1.2.1 *not to commit the
following act(s) of domestic violence:
Threaten, harass emotionally or
physically abuse applicant’.
[7] In accordance with the usual form
of such interim protection orders and in terms of Clause 4.2 of
thereof, a warrant for the
arrest of the plaintiff was authorized and
the execution thereof was suspended subject to compliance by the
plaintiff with the
provisions of the order.
[8] On 25 January 2007 the complainant
applied for and was furnished with a certified copy of the interim
protection order and a
warrant of arrest contemplated in section 8
(1) (a) of the Act.
[9] On 26 January 2007 the complainant
handed the warrant of arrest to Gumede at the Durban Central Police
Station. Neither the
interim protection order nor any affidavit or
statement was annexed to the warrant of arrest. The second defendant
then executed
the warrant and arrested the plaintiff at his residence
at approximately 14h30. The plaintiff was detained until
approximately
19h00 on 27 January 2007, when he was released on bail.
[10] It is common cause that the
complainant furnished Gumede with the interim protection order after
the arrest, at approximately
16h00, which is when he took a statement
from her.
[11] At all material times the second
defendant was acting in the course and scope of him employment with
the first defendant.
[12] Subsequently the charge was
withdrawn by the Public Prosecutor who did not consider that the
plaintiff’s alleged conduct
constituted a breach of the interim
Protection Order granted under Case No 81/2007 in the Durban
Magistrate’s Court and a
certificate of Nolle Prosequi was
issued.
Issues for determination :
[13] Was the warrant of arrest invalid
as the interim protection order and affidavit referred to therein
were not attached to the
warrant when it was handed to the second
defendant, and the complainant had not made a statement about the
alleged contravention
of the order by the plaintiff, thereby
rendering the execution of the warrant and the arrest of the
plaintiff by him unlawful?
[14] Did the second defendant have
‘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, although the interim protection
order and affidavit were
not furnished to him by the applicant with
the warrant?
Argument
[15] It was contended by Mr Gunase on
behalf of the plaintiff that there were insufficient grounds for the
arrest of the plaintiff
as Gumede arrested the plaintiff before the
complainant had made a statement and the warrant was not presented
with the annexures.
Even after the statement was taken from the
complainant Gumede failed to exercise his discretion despite there
being no indication
in that statement that the plaintiff had
contravened the terms of the interdict. Further he had not
investigated the matter further.
Consequently he had not acted as a
prudent and reasonable police officer in arresting the plaintiff. The
arrest was therefore unlawful
and wrongful.
[16] In response Ms Naidoo for the
defendants submitted that Gumede, as the arresting officer, was
satisfied that he could arrest
the plaintiff as he had been furnished
with a warrant which was authorized by a Magistrate, he was advised
by the complainant that
she was abused in contravention of the
protection order and he could not question or interfere with the
warrant. In arresting the
plaintiff, he had therefore acted on a
reasonable suspicion that the plaintiff had contravened the order,
and the arrest and detention
of the plaintiff was consequently not
unlawful.
Evidence
[17] At the commencement of the trial
the court was advised that as most of the facts were common cause and
the onus was on the
defendant to prove that the arrest of the
plaintiff was lawful, the plaintiff did not intend to lead any
evidence, and the defendants
would proceed with their case.
[18] Only one witness was called, the
second defendant, Gumede, who holds the rank of warrant officer in
the South African Police
Services and was stationed at the Durban
Central Police Station in January 2007.
Gumede testified that he did not know
the complainant prior to the 26 January 2007 when she brought the
warrant of arrest issued
on 25 January 2007 in terms of
S8
(1) (a) of
the
Domestic Violence Act to
him. The complainant advised him that
the respondent (the Plaintiff) had breached the conditions of the
interim protection order.
Gumede testified that as the warrant
had been issued by the magistrate, he was of the belief that the
magistrate would have attended
to the procedural requirements and
necessary enquiries before issuing the warrant. He did not think it
was necessary for him to
check the warrant to ensure that it was
properly issued. It was incumbent on him only to execute the warrant.
Under crossexamination Gumede
confirmed that he had arrested the plaintiff although there was no
affidavit attached to the warrant
of arrest. In his view the court
would not issue the warrant unless it was satisfied that the
complainant was at risk of harm from
the respondent.
Further the warrant authorized him to
effect an arrest if there were reasonable grounds to do so. The
complainant appeared to be
in distress and emotionally distraught
although she had not been physically assaulted. The complainant had
informed him that she
was abused by being threatened. He therefore
did not deem it necessary to take a statement first or to have sight
of the protection
order before effecting the plaintiff’s
arrest.
[19] Although Gumede had not
previously executed a warrant of arrest in a domestic violence matter
or read the Act or received any
training on its implementation, he
was aware that many women have suffered abuse because the police took
too long to execute such
warrants. Therefore when the complainant
told him that she would return with the protection order, he was
satisfied that he could
deal with the administration later and
proceeded to execute the warrant in the interim. He effected the
arrest of the plaintiff
at approximately 14h30 and took the statement
from the complainant at about 16h00 when she returned with a copy of
the protection
order.
[20] Gumede was also satisfied that
the contravention of the order had taken place within the
jurisdiction of the Durban Central
Police Station as the
contravention had occurred at the premises of the Durban Magistrate’s
Court.
[21] The defendants closed their case
without calling further witnesses. The plaintiff closed his case
without calling any witnesses.
The Interim Protection Order and
the Warrant of Arrest
[22] The arrest of the plaintiff was
effected by the execution of a warrant issued in terms of Section 8
of the Act. The relevant
clauses of Section 8 are :
“
(1) Whenever a court issues a
protection order, the court must make an
order –
authorizing the issue of a warrant
for the arrest for the respondent, in the prescribed form; and
suspending the execution of such
warrant subject to compliance with any prohibition, condition,
obligation or order imposed
in terms of section 7.
The warrant referred to in subsection
(1) (a) remains in force unless the protection order is set aside or
it is cancelled after
execution.
………………
(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.
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) ………..
(d) ………..
(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.”
[23] In accordance with the aforegoing
provisions, in particular Section 8 (1), Clause 4.2 of the protection
order provides as follows
:
‘
4.2 A warrant is authorized for
the arrest of the respondent, the execution of which is suspended
subject to the respondent’s
compliance with the provisions of
the Protection Order as stated above.’
[24] In casu, the protection order and
warrant were authorized and the warrant suspended on 5 January 2007.
The warrant was issued
by the magistrate on 25 January 2007 when the
complainant alleged that the plaintiff had contravened the protection
order.
[25] The warrant of arrest is
addressed to “All members of the South African Police Service”
and reads as follows :
‘
Whereas the attached protection
Order was granted against the respondent by the Magistrate’s
Court for the district of Durban
on the 5 January 2007 and
Whereas the complainant has stated in
the affidavit attached that the respondent has breached (a)
condition(s) of the Protection
Order;
Therefore you are hereby authorized
and ordered to forthwith arrest the respondent in terms of the
provisions of the
Domestic Violence Act 1998
, if 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.
[26] The affidavit referred to in the
warrant is the ‘Affidavit Regarding Contravention of Protection
Order’ in terms
of Section 8 (4) of the Domestic Violence Act
116 of 1998 (Exhibit B page 21), which has to be completed by a
complainant who alleges
that a protection order granted on
application by him/her has been contravened by the respondent
thereto. It is apparent from a
perusal of the warrant that this
affidavit must be completed before the warrant is executed as the
warrant may only be executed
consequent to the alleged contravention
of the order, which is set out in the affidavit.
[27] Contrary to the submission on
behalf of the defendants that the issue of the warrant was premature
because the interim order
had not been confirmed, a warrant may be
authorised in terms of Section 8 (1) (a) and served on the
complainant in terms of Section
5 (7) (b) even in respect of an
interim protection order, once the order has been served on the
respondent.
[28] However the responsibility to
conduct any the investigation and enquiry prior to the execution of
the warrant lies with the
member to whom the complainant hands the
affidavit as he /she may execute the warrant only if satisfied that
the alleged contravention
of the interim order as set out in the
affidavit sustains the execution of the warrant.
[29] In my view the mere failure to
furnish Gumede with the annexures did not invalidate the warrant as
it was properly authorised;
the warrant was however incomplete as the
order and affidavit in terms of Section 8(4)(a) were not annexed
thereto.
See
Seria v The Minister of Safety
and Security & Others
2005 (5) SA 130
at 144 E-G,
where it
was held per
Meer J
that
:
‘…
.the validity of a
warrant of arrest lay in the authority for its issue being ordered by
a court under Section 8(1)(a) of the Act
simultaneously with the
issue of a protection order. In the case of the warrant in question
being undated and contrary to the regulations
and prescribed form,
whilst a serious omission, did not detract from its validity. The
plaintiff’s arrest occurred pursuant
to a valid protection
order and valid warrant of arrest as contemplated by S 8(1) of the
Act.’
[30] The warrant refers to the
‘attached’ protection order and affidavit and authorizes
and orders the police to forthwith
arrest the respondent ‘if
there are
reasonable grounds
to suspect that the complainant
may suffer imminent harm.’
The execution of the warrant is
therefore constrained by the annexures thereto. The protection order
sets out the nature of the
interdict against the respondent and the
affidavit must contain details of the alleged contravention of the
interdict by the respondent.
Only after a perusal of the annexures
will a ‘member’ to whom the warrant is handed, be able to
exercise his/her discretion
as allowed in terms of Section 8(4) (b)
of the Act read with Subsection (5), and decide if there are
reasonable grounds that the
complainant is at risk which justifies
his arrest alternatively whether a notice in terms of Section 8(4)(c)
should be served on
the respondent.
[31] In casu, the complainant only
handed the warrant of arrest to Gumede when she reported the alleged
contravention. She advised
him that she had forgotten the protection
order and that she would return with it later. He thereupon executed
the warrant and
arrested the plaintiff.
Although it is apparent from the
warrant, that the warrant was authorized and that there was an
allegation that the order had been
breached by the plaintiff, it was
nevertheless incumbent upon Gumede before executing the warrant to
satisfy himself of the terms
of the order and of the nature of the
alleged breach before executing the warrant. He failed to apply his
mind to the proviso that
the arrest should only be effected ‘
if
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.’ (my emphasis)
[32] Instead Gumede acted in the
belief that he could not question the authority of the magistrate who
issued the warrant and that
there was no need to, because the
magistrate would have made the necessary enquiries about the alleged
breach prior to issuing
the warrant. He was therefore satisfied that
he could execute the warrant on receipt thereof and on the verbal
advices of the complainant
that the warrant had been issued because
the plaintiff had breached the order.
However as a result of Gumede’s
failure to peruse the documents and to satisfy himself as aforesaid,
there were no grounds
to suspect that the complainant may suffer
imminent harm. Clearly the threshold of ‘reasonable grounds’
could not be
reached given the lack of information at his disposal.
[33] Even though Gumede had not been
presented with a warrant of arrest in terms of the Act previously or
received any training
on the implementation of the provisions of the
Act, in particular the execution of a warrant of arrest issued in
terms of the Act,
as an experienced member of the South African
Police Services, he ought to have known that the arrest of an
individual is a drastic
infringement of the arrestee’s
constitutional rights to freedom and security of person ( Section 12
of the Constitution of
South Africa No 108 of 1996) and a warrant
should therefore not be executed in haste and without due
consideration of all the pertinent
facts, particularly as there was
only an allegation, not conclusive proof, that the order had been
breached.
[34] Further when the complainant
returned with the protection order, and deposed to a statement, it
ought to have been apparent
to Gumede from her statement that the
alleged breach and verbal and /or emotional abuse by the plaintiff
did not constitute a breach
of the order, nor did plaintiff’s
comment expose her to imminent harm. Consequently Gumede ought to
have realized that not
only the arrest but the continued detention of
the plaintiff was not justified. However he failed to release the
plaintiff.
[35] In the premises I am persuaded
that the arrest and detention of the plaintiff was unlawful.
[36] It is of great concern that
despite the lapse of time since the promulgation of the Act in
December 1999, the police officers
who are tasked with the
implementation of the significant and drastic penal provision of the
Act viz warrants of arrest, have not
received training in the
execution of warrants issued in terms of the Act. Gumede was not
aware that warrants are authorized on
the granting of a protection
orders in terms of Section 8 and handed to the complainants in terms
of S 5(7) and therefore cannot
be dealt with in the manner he
considered appropriate, as the magistrates do not make the necessary
investigations as he envisaged.
[37] During his testimony, he also
made a very valid comment that the police are frequently criticized
for not acting quickly in
matters of domestic violence.
He was correct that women have become
victims of assault and other serious acts of violence despite
obtaining protection orders
under the Act, because the police have
failed to respond or act urgently. Only recently a woman was killed
despite and in the presence
of police, while attempting to implement
the terms of the order of court she had been granted against her
partner.
[38] The lack of training and the
failure to inform police officers of the provisions of the Act,
impacts adversely on their appreciation
of their responsibility and
ability to balance the rights of the complainant with the rights of
the respondent. It also impacts
adversely on the interests of the
public, who are not only at risk of unlawful arrest and detention (as
was the case with the plaintiff)
but public resources are depleted as
a result of the litigation which emanates from the unlawful conduct
of the police.
[39] In arresting and detaining the
plaintiff, Gumede acted in the course and scope of his employment
with the first defendant.
As his actions may be attributed to the
failure of the first defendant to train and inform him as aforesaid,
I am of the view that
he ought not to be penalized with an order as
prayed and be held liable to compensate the plaintiff for damages
jointly and severally
with the first defendant. It is the first
defendant that should be held liable to the plaintiff.
[40] There is no reason why costs
should not follow the order.
Order :
1 Judgment is granted for the
plaintiff against the first defendant for such damages as may be
proved by the plaintiff or agreed;
2 The first defendant is ordered to
pay the costs incurred by the plaintiff on the issue of liability.
___________________
Counsel for the Plaintiff: Adv M
Naidoo
Instructed by: MDU NKOMO & COMPANY
SUITE 501, 5
TH
FLOOR
397 SMITH STRAAT
DURBAN
Counsel for the Respondent: Adv H
Gunase
Instructed by: H SMAL (Assistant State
Attorney)
STATE ATTORNEY
SIXTH FLOOR
METLIFE BUILDING
391 SMITH STREET
DURBAN