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[2011] ZAKZPHC 3
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Glass v Minister of Safety and Security and Others (AR 335/10) [2011] ZAKZPHC 3 (11 February 2011)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
No : AR 335/10
In
the matter between :
Geoffrey
Bruce Glass
….....................................................................................
Appellant
and
The
Minister of Safety and Security
…......................................................
1
st
Respondent
Captain
R Moodley
…..............................................................................
2
nd
Respondent
Inspector
T W G Lourens
….....................................................................
3
rd
Respondent
Constable
C T van Rooyen
…..................................................................
4
th
Respondent
Judgment
Lopes J
[1] This matter comes before us by way
of leave to appeal which was granted by Naidoo AJ on the 18
th
August, 2009. The learned Judge had dismissed the appellant’s
claim with costs.
[2] The appellant’s claim was
for damages in the sum of R120 000, for wrongful and unlawful arrest
without a warrant by one
or more of the second, third or fourth
respondents, who, at the time of his arrest, were members of the
South African Police Service
and employed by the first respondent.
The appellant also alleges that the arrest was made in the presence
of members of the public.
[3] The appellant’s case was
based on his own evidence and that of a Mrs M Boucher. It is common
cause that :-
the appellant and his wife had for a
long time endured a volatile matrimonial relationship; and
both the appellant and his wife had
obtained orders against each other in terms of the Domestic Violence
Act, 1998 (“the
Act”);
the appellant’s wife had
deposed to an affidavit in terms of sub-s 8(4)(a) of the Act;
on the 11
th
March, 2000,
the third respondent, who at the time was accompanied by the fourth
respondent, effected the arrest of the appellant
at the home of Mr
and Mrs Boucher; and
the liberty of the appellant was
effectively curtailed at the Newcastle police station for
approximately six hours from approximately
3pm until 9pm that
evening when the appellant was returned to the home of Mr and Mrs
Boucher by police officials.
[4] Ultimately the decision in this
matter rests upon a finding that the third and fourth respondents had
complied with the provisions
of sub-s 8(4)(b) of the Act in arresting
the appellant. The learned Acting Judge set out the evidence which
had been given on behalf
of the appellant by himself and Mrs Boucher.
It was common cause that Mr Boucher is in fact deceased.
[5] The evidence of the appellant can
best be described as a long rambling diatribe. Most of his answers to
questions put to him
by both his counsel and counsel for the
respondents were answered indirectly or, initially, not at all. In
addition, during the
giving of his evidence the appellant was often
emotional, and on occasions burst into tears. There can be no
criticism of the learned
Acting Judge’s conclusion that the
appellant was not a satisfactory witness, that he often evaded direct
answers and was
unable to give simple explanations to questions asked
of him.
[6] The evidence of Mrs Boucher does
not materially assist the appellant in helping the Court to decide on
the disputed issues of
fact. This was because it is common cause that
when the police officials visited the home of Mr and Mrs Boucher in
order to arrest
the appellant, Mrs Boucher remained inside the house.
She was therefore unable to comment on whether the appellant was
shown a
warrant by the third respondent, and whether the appellant
went to the Newcastle police station in a police vehicle or in a
vehicle
driven by Mr Boucher. The best she could offer was that she
did not believe Mr Boucher would have been capable of driving the
appellant
to the Newcastle police station because of his medical
condition. He was allegedly frail because of an operation he had
recently
undergone.
[7] It is clear from the evidence of
the third respondent that he acted on the instruction of his superior
officer, the second respondent,
Captain Moodley in initially
considering whether he should execute the warrant of arrest. However,
it is clear from the evidence
that he did not rely solely on that
instruction and made his own independent assessment of whether or not
be was entitled to arrest
the appellant. It was necessary for the
third respondent to have made his own independent decision to arrest
the appellant because
of the provisions of sub-s (8)(4)(b) of the
Act. The enquiry which he had to address was whether he had
reasonable grounds to suspect
that appellant’s wife and
children might suffer imminent harm as a result of the appellant’s
breach of the protection
order.
[8] The test for whether his belief
that the appellant had committed an offence, and the possibility of
imminent harm to the appellant’s
wife, are to be judged on the
basis of the reasonable belief of the third respondent. In my view
the evidence amply bears out the
findings of the learned Acting Judge
that the third respondent gave serious consideration to these
questions and correctly decided
that he could and should arrest the
appellant.
[9] The evidence of the third
respondent and that of the other police officials who testified reads
well, and the learned Acting
Judge’s finding that they were
good witnesses whose evidence was credible and satisfactory cannot be
faulted. The evidence
of the third and fourth respondents was that
they were in possession of a warrant at the time when they arrested
the appellant.
There was indeed no challenge to the third
respondent’s evidence that he had endorsed the warrant after he
had arrested the
appellant. It is extremely unlikely that he could
have done so on the day of the arrest of the appellant if he was not
in possession
of the warrant at the time.
[10] Both the third and fourth
respondents gave evidence as to the fact that the appellant was
transported to the Newcastle police
station in a private vehicle
which followed their vehicle. This is something about which the third
and fourth respondents had no
motive to be untruthful. How the
appellant arrived at the Newcastle police station was really neither
here nor there in the overall
scheme of deciding whether or not the
arrest of the appellant was lawful. What a finding on that issue does
do is create considerable
doubt as to the credibility of the
appellant as a witness.
[11] Mr
White
who appeared for
the appellant submitted that the evidence of the third respondent
does not demonstrate why he regarded it as being
reasonable to arrest
the appellant. In this regard Mr
White
referred to the
evidence of the third respondent, drawing attention to the fact that
the third respondent had been asked in cross-examination
what the
reasonable grounds were upon which he relied in order to justify the
arrest of the appellant. The third respondent replied
that he had
reached the conclusion that the complainant may suffer imminent harm
after reading her statement, and then visiting
the Glass residence
where he had found Mrs Glass and her children traumatized and crying.
He expressed the view that if Mr Glass
had been present at the
residence he would have arrested him then and there.
[12] Despite the lack of particularity
in the sub-s 4(a) statement made by Mrs Glass, there is sufficient in
the statement for the
third respondent to have concluded that Mrs
Glass and her children had, during the period between the 25
th
February, 2000 and until the 11
th
March 200 undergone
emotional and psychological abuse at the hands of the appellant. The
imminent harm was clearly that that situation
would persist.
[13] Mrs
Stretch
who appeared
for the respondents submitted that there were three stages which
contributed to the state of mind of the third respondent
and led to
him concluding that it was reasonable to arrest the appellant. Those
stages were :-
the third respondent’s reading
of the statement by Mrs Glass;
the condition in which the third
respondent found Mrs Glass and her two sons; and
the behaviour of the appellant at the
Boucher home.
[14] Whatever views the third
respondent had reached by the time he arrived at the Boucher home,
his decision to arrest the appellant
could only have been confirmed
by the abusive behaviour of the appellant.
[15] In all the circumstances the
learned Acting Judge correctly assessed the evidence of the witnesses
and found in favour of the
version given by the second, third and
fourth respondents. In those circumstances the finding that the
plaintiff’s claim
was dismissed with costs was correct.
[16] I accordingly make an order
dismissing the appeal with costs.
Patel DJP : I agree.
D Pillay J : I agree.
It is so ordered.
Date of hearing : 2
nd
February 2011
Date of judgment : 11
th
February 2011
Counsel for the Appellant : J M White
(instructed by Jon White Attorneys)
Counsel for the Respondent : I T
Stretch (instructed by the State Attorney)