Seria v Minister of Safety and Security and Others (9165/2004) [2004] ZAWCHC 26; 2005 (5) SA 130 (C); [2005] 2 All SA 614 (C) (15 October 2004)

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[2004] ZAWCHC 26
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Seria v Minister of Safety and Security and Others (9165/2004) [2004] ZAWCHC 26; 2005 (5) SA 130 (C); [2005] 2 All SA 614 (C) (15 October 2004)

IN THE CAPE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
[Reportable]
CASE NO: 9165/2004
In the matter between:
NAZEER
AHMED SERIA Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY 1
st
Defendant
DETECTIVE
INSPECTOR (F) L LEONARD 2
ND
Defendant
DETECTIVE
INSPECTOR W STEVENS 3
RD
Defendant
JUDGMENT: 15 OCTOBER 2004
MEER, J:
Introduction
The plaintiff claimed damages in the sum of R150
000 in an action for unlawful arrest arising out of his arrest by the
second and
third defendants on 28 September 2002, and subsequent
detention until 29 September 2002. The arrest was carried out under
the auspices
of the Domestic Violence Act, No 116 of 1998, (‘the
Act’) for an alleged breach of a protection order
1
granted against plaintiff and in favour of his former wife Naziema du
Toit. The arrest was authorized by a warrant of arrest issued
in
terms of section 8(1)(a) of the Act.
In enunciating his claim, the plaintiff disputed the validity of both
the protection order and the warrant of arrest issued therewith
to
secure his arrest. In addition, he claimed that the allegations by
Naziema du Toit which caused his arrest were false and failed
to
satisfy the threshold requirements for effecting an arrest in terms
of the Act.
The defendants in turn pleaded that plaintiff was lawfully and
justifiably arrested pursuant to a valid warrant of arrest, for an
alleged breach of the protection order issued in favour of Naziema du
Toit. There were, so they pleaded, reasonable grounds to suspect
that Naziema du Toit may suffer imminent harm as a result of the
alleged breach.
Legislative
Framework
The
Domestic Violence Act was
promulgated in
response to the alarmingly high incidence of domestic violence within
South African society. The purpose of the Act
is to afford victims
of domestic violence the maximum protection from domestic abuse that
the law can provide and accords with that
of similar legislation in
different parts of the world.
2
The term domestic violence is widely defined in the Act to include;
“
(a)
physical
abuse;
sexual abuse;
emotional, verbal and psychological abuse;
economic abuse;
intimidation;
harassment;
stalking;
damage to property;
entry into the complainant’s residence without consent, where
the parties do not share the same residence; or
any other controlling or abusive behaviour towards a complainant,
where such conduct harms of may cause imminent
harm to, the safety, health or wellbeing of the complainant
”.
3
Central to the purpose of the Act, is the granting
of a protection order for the protection of a victim of domestic
violence, and
the simultaneous issue of a warrant for the arrest of
the perpetrator. The execution of the warrant is however suspended,
but becomes
activated in the event of an alleged breach of a
protection order, if it appears to a member of the police service
that there are
reasonable grounds to suspect that the complainant may
suffer imminent harm. In that event the police officer must execute
the warrant
and arrest the perpetrator.
4
Sections 5 and 6 of the Act provide for the granting of interim and
final protection orders, following upon an application under
section
4. Section 8 enables the issuing of warrants of arrest and
subsequent arrests. It is useful at the outset, to set out the
relevant subsections which have a bearing on this case.
Sections 5 and 6 of the Act read as follows:
“
5 Consideration of application and
issuing of interim protection order
(1) The court must as soon as is reasonably possible consider an
application submitted to it in terms of section 4(7) and may, for
that purpose, consider such additional evidence as it deems fit,
including oral evidence or evidence by affidavit, which shall form
part of the record of the proceedings.
(2) If the court is satisfied that there is prima facie evidence
that-
(a) The respondent is committing, or has committed an act of
domestic violence; and
(b) undue
hardship may be suffered by the complainant as a result of such
domestic violence if a protection order is not issued immediately,
the court must, notwithstanding the fact that the respondent has
not been given notice of the proceedings contemplated in sub-section
(1), issue an interim protection order against the respondent, in the
prescribed manner.
(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 sub-section (1) must be
served on the
respondent together with the interim protection order.
(4) ….
(5) ….
(6) An
interim protection order shall have no force and effect until it has
been served on the respondent.
(7) Upon
service or upon receipt of a return of service of an interim
protection order, the clerk of the court must forthwith cause
–
(a) a certified copy of the interim protection order; and
(b) the original warrant of arrest contemplated in section
8(1)(a),
to be served on the complainant.
6 Issuing of protection order
(1) If the respondent does not appear on a return date
contemplated in section 5(3) or (4), and if the court is satisfied
that;
(a) proper service has been effected on the respondent; and
(b) the
application contains prima facie evidence that the respondent has
committed or is committing an act of domestic violence,
the court must issue a protection order in the prescribed form.
(2) …
(3) …
(4) …
(5) Upon
the issuing of a protection order the clerk of the court must
forthwith in the prescribed manner cause-
(a) the original of such order to be served on the respondent; and
(b) a
certified copy of such order, and the original warrant of arrest
contemplated in section 8(1)(a), to be served on the complainant.
(6) The clerk of the court must forthwith in the prescribed manner
forward certified copies of any protection order and of the warrant
of arrest contemplated section 8(1)(a) to the police station of the
complainant’s choice.”
Section 8
of the Act provides for the issuing of a warrant of arrest
simultaneously with the issuing of a protection order and crucially
makes provision for arresting a respondent.
“
8 Warrant of Arrest upon issuing of a protection order
Whenever a court issues a protection order, the court must make
an order-
(a) authorizing the issue of a warrant for the arrest of the
respondent, in the prescribed form; and
(b) 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 sub-section 1(a) remains in force
unless the protection order is set aside, or it is cancelled after

execution.
…
.
(4) (a) 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 sub-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).
5
(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 a 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.
Against the backdrop of the relevant legislative provisions, I turn
to consider the plaintiff’s arrest.
Evidence and Circumstances of Plaintiff’s arrest
The plaintiff, an
architect by profession, residing in the Cape Town suburb of Athlone,
was formerly married to one Naziema du Toit.
In about November 2001
Ms du Toit moved out of the marital home and took up residence in the
family holiday home at Betty’s Bay
in the magisterial district of
Caledon. Whilst residing at Betty’s Bay, she obtained an interim
protection order against the plaintiff
out of the Caledon
Magistrates’ Court on 14 December 2001, with a return day of 25
January 2002. The interim order was served
personally on the
plaintiff at Betty’s Bay.
In terms of the interim protection order the plaintiff was ordered
not to commit the following acts of domestic violence against
Ms Du
Toit:
- assault, threaten or emotionally abuse her;
- obtain the assistance of another person to assault, threaten or
emotionally abuse her.
He was also ordered:
- not
to enter the dwelling situated at 2152 Park Road, Betty’s Bay;
- not
to remove the motor vehicle in her possession.
In
accordance with the Act, the Court ordered a copy of the interim
protection order and the warrant of arrest issued simultaneously
therewith to be sent to the Kleinmond police station as soon as the
interim order was served on the plaintiff. The warrant of arrest
did
not adhere to the format prescribed by the regulations promulgated
under the Act
6
(‘the Regulations’) and it was undated, the date stamp omitting
to display the date of issue.
The plaintiff’s undisputed testimony was that after obtaining the
interim protection order, Ms Du Toit returned for a period to
the
marital home but they did not become reconciled. They however came
to an agreement that the interim protection order would be
withdrawn.
Accordingly on the return day of the interim order, 25 January 2002,
plaintiff drove Ms Du Toit to the Caledon Magistrates’
Court for
the purpose of withdrawing the interim order. There, plaintiff
remained in the car whilst Ms Du Toit went into the court,
emerging
half an hour later to inform him that the interim order had been
withdrawn.
Unbeknown to plaintiff however, Ms Du Toit did not withdraw the
interim order. Instead a final protection order was granted at the
Caledon Magistrates’ Court on 25 January 2001. Thereafter Ms Du
Toit moved from Betty’s Bay to a flat in Mouille Point, Cape
Town,
and her file was transferred from the Caledon to the Wynberg
Magistrates’ Court. Ms Smit, a senior clerk at the Wynberg
Magistrates’ Court, testified that (as had been established from
the Caledon clerk of the court), the final protection order once
granted, was not served on the plaintiff as provided for in the Act.
In September 2002 the plaintiff and Ms Du Toit
obtained an Islamic divorce, or
Talaaq
.
By that stage there were protracted and acrimonious interactions
between them pertaining primarily, it would seem, to the proprietary
consequences of their marriage. Plaintiff referred to an e-mail Ms
Du Toit had sent him on 23 May 2002 threatening to reinstate
the
court order and have him arrested. Relations between them had
deteriorated to such an extent he said, that she would stop at
nothing to get him arrested.
On 13
September 2002, some nine months after the final protection order was
granted, plaintiff began to suspect that the interim protection
order
had not been withdrawn, when Ms du Toit, accompanied by members of
the Lansdowne Police, arrived at his house. Inspector Jackson
ordered him to hand over the keys to the Betty’s Bay house, to
reconnect the telephone at Ms Du Toit’s Moullie Point flat and
pay
her outstanding electricity accounts. Plaintiff handed over the
keys. When he asked Ms Du Toit whether she had in fact withdrawn
the
interim order, she had become abusive and driven away.
About two weeks later the plaintiff
was arrested for allegedly contravening the protection order. The
events which precipitated his
arrest were as follows:
On 26
September 2002 Ms Du Toit attested to an affidavit at the Lansdowne
Police Station, an extract from which stated:
“
On 2002.09.13 …. my estranged husband telephonically abused
me and threatened that he would beat me up beyond recognition if I do
not move out of our holiday house in Betty’s Bay.
He
has threatened to take my car away from me, the order states that he
may not.
Nazeer
has assaulted me on many occasions in the past which I did not report
but I do feel afraid and threatened by his threats.”
On the following morning, Friday 27 September
2002, Inspector Jenny Leonard, who has been a police officer since
July 1983 and has
experience of over 100 family violence cases, was
made investigating officer in Ms Du Toit’s case. Inspector Leonard
testified
that on receiving the file shortly before 09:40am, she had
spoken telephonically to Ms Du Toit. Immediately thereafter and at
09:40
(the time as recorded by her), she made an entry in her
investigation diary to the effect that the plaintiff will be
arrested, writing
the words, “
Verdagte
sal gearresteer word”
.
Inspector
Leonard did nothing further in the case that day and said she had
locked the file in her office when she went off duty on
the afternoon
of 27 September 2002.
On the evening of Friday 27 September 2002 Ms Du Toit returned to the
Lansdowne Police Station and once again lodged a complaint
against
the complainant, this time with Sgt Van Wyk who was on duty that
evening. The incident book entry by Sgt Van Wyk (written
much later
at 1:10 am on Saturday 28 September 2002), erroneously refers to Ms
Du Toit’s case as one of common assault. It states
also that she
had asked that the plaintiff be locked up.
Acting on Ms Du Toit’s complaint, Sgt Van Wyk proceeded to the
plaintiff’s house and asked that he accompany him to the police
station, which the plaintiff did in the company of his lawyer. The
plaintiff testified that as they left his home, he observed Ms
Du
Toit sitting outside the house in her vehicle and she waved to them.
At the police station, he was informed Ms Du Toit had complained
that
he had sworn at her telephonically in September 2002, contrary to the
protection order. After discussions with the police it
was agreed
that plaintiff would not be arrested. Instead he and his lawyer
would return to the police station on the morning of
Monday 30
September 2002. Plaintiff was allowed to return to his home, which
he did, after midnight.
Sgt Van Wyk’s entry in the incident book records the agreement with
the police that plaintiff would not be detained. The entry
(which
incorrectly refers to the plaintiff as Mr Du Toit), states that as a
result of representations made by plaintiff’s lawyer,
the station
commissioner, Superintendent Olivier, had deliberated with the
station commander, Captain Christiaans, about the necessity
for
detaining the plaintiff. Captain Christiaans had come to the view
that it was not necessary to hold the plaintiff and Superintendent
Olivier had conveyed this to Sgt Van Wyk with the instruction that
plaintiff and his lawyer were to return to the police station
on the
morning of 30 September. The entry also records that, at the request
of plaintiff’s lawyer, Sgt Van Wyk had handed in both
the interim
and final protection orders for safekeeping. The “SAP 13 Register”
which records documents handed in for safe keeping,
records these
documents as well as the warrant of arrest issued by the Caledon
Magistrate’s Court.
Notwithstanding this agreement, the plaintiff was arrested on
Saturday 28 September 2002 by Inspector Leonard. When Inspector
Leonard
resumed duty on the morning of 28 September, she was not
informed by her superiors or Sgt Van Wyk about the previous night’s
developments
in the case and the arrangement not to arrest the
plaintiff. Nor did Inspector Leonard read Sgt Van Wyk’s incident
book entry
about the previous night’s occurrences, which, she
conceded, as an experienced investigating officer, she ought to have
done.
So,
oblivious to the previous night’s arrangement, Inspector Leonard
took the decision to arrest the plaintiff on Saturday 28 September
2002.
The events which lead up to his
arrest were as follows:
That morning, Ms Du Toit arrived at
the police station shortly after 10:00am in a hysterical state,
saying her life was in danger
and that she had been threatened by the
plaintiff. As proof thereof she produced a computer generated note,
(‘the threatening
note’), which she said she had found in her
mailbox at 11:50pm the previous night, and suspected was written by
plaintiff. An
extract from the note stated:
“
YOU ARE BEING WATCHED
YOUR
TIME IS LIMITED
YOU
WILL NOT LIVE TO SEE YOUR SON COME BACK HOME FROM ENGLAND. ”
Ms Du Toit told Inspector Leonard that she had been so shaken by the
note, that she had fled her flat and spent the night with family
in
Goodwood. She said she could not return to her flat, as she feared
for her life.
In addition to the note Ms Du Toit handed Inspector Leonard a further
statement, headed “ADDITIONAL INFORMATION TO STATEMENT -
CASE NO.
324/09/2002” (‘the additional statement’) wherein she states
that she can only suspect that the threatening letter
is from the
plaintiff. The additional statement furthermore refers to
plaintiff’s attendance at the police station the previous
evening
and the arrangement not to arrest him, in the following extract:
“
On
27 September 2002 Captain Christiaans ordered the night personnel to
arrest Nazeer Seria. His advocate, Mr Paul Eia, arrived at
his house
and accompanied him to the Lansdowne Charge Office. He was not
arrested.
An
appointment was made for me to see Detective Inspector Stevens at
10:00 on 28 September 2002 where this matter could be discussed
further
”.
Notwithstanding this reference to the plaintiff’s
presence at the charge office the night before, Inspector Leonard was
not alerted
to the previous night’s events. Nor was she so alerted
when, as she testified, Ms Du Toit made mention that Sgt Van Wyk had
removed
the protection orders and handed them in for safekeeping the
night before. She had not paid much attention to this information,
she said, because Ms Du Toit was hysterical and had told her “
so
many things
.” Inspector Leonard had
thus not seen fit to investigate what had transpired the previous
night.
Inspector Leonard came to the view that Ms Du Toit’s life was in
danger and took a decision to arrest the plaintiff on the basis
of
the threatening note and its effect on Ms Du Toit, the additional
statement and the earlier one of 26 September 2002. She was
of the
opinion that in the light of these documents and the protection
order, it was not necessary for her to investigate further,
or take
another statement in order to effect the arrest of the plaintiff. In
addition she said the fact that the warrant of arrest
issued by the
Caledon Magistrate’s Court was undated, did not cause her to
question its validity.
Inspector Leonard, together with Inspector Stevens, arrested the
plaintiff at his home at about 3:30pm on Saturday 28 September 2002.

The plaintiff was entertaining guests and preparing to have a braai
at the time. His testimony is that he was shown neither a warrant
of
arrest nor a charge sheet, nor informed why he was being arrested.
Nor was he confronted with or asked about the threatening
letter.
The plaintiff described the police officers as rude and insensitive
in effecting his arrest. All the while his guests were
in
attendance. One of the guests, Mr Hall, corroborated plaintiff’s
version of the arrest adding however that he was not always
within
earshot of plaintiff and the police officers. The plaintiff was
permitted to take warm clothes and medication for his heart
condition, with him.
Inspector Leonard, by contrast said she had shown plaintiff a warrant
and informed him that he was being charged for allegedly contravening
a protection order granted in favour of Ms Du Toit. Her testimony as
to whether she had used the original warrant of arrest to effect
plaintiff’s arrest was however vague and somewhat confusing. She
conceded that she had not shown him the threatening note, nor
questioned him about it. The plaintiff was taken initially to the
Lansdowne Police Station where he was kept from 16h:00 to 19h:30
in
full view of members of the public. Here, he said he was shown a
document, “Notice of Rights” which spelt out his rights
as a
detainee.
He was then taken to the Athlone Police Station
where he was initially locked in a cell on his own and thereafter
made to share a
cell with a drug addict for the night. Whilst there,
an attempt was made to bring an urgent application to secure his
release.
At noon the following morning, Sunday 29 September 2002,
plaintiff was taken back to the Lansdowne Police Station, where,
according
to him, Inspector Leonard had said “
[i]t’s
about time you come right, why is everybody worried about you, you
didn’t have a heart attack.
”
Thereafter he was released. Inspector Leonard explained that his
release came about after she received telephonic instructions from
the public prosecutor, Wynberg Magistrates’ Court, on the morning
of Sunday, 29 September 2002, to release him on a warning.
The following morning, Monday 30 September 2002, plaintiff appeared
in the Wynberg Magistrates’ Court on a charge of contravening
the
protection order, by behaving in a threatening manner or using
threatening words towards Ms Du Toit. On 14 March 2003 he was
found
not guilty and discharged.
The plaintiff said he had learned about the threatening note which
had precipitated his arrest for the first time when Ms Du Toit’s
lawyer referred to it in court on 30 September 2002. He vehemently
denied that he was the author of the computer generated note,
saying
he was not computer literate and that Ms Du Toit’s mail box was not
accessible to him. To reach it, he said, an electronic
gate first
had to be triggered by someone in the building where she lived. His
arrest, he said was the most humiliating and degrading
event he had
ever experienced. Sadly the matter did not end there, for two weeks
after his arrest, on 18 October 2002, plaintiff
and Ms Du Toit found
themselves in court once more, this time at his instigation. His
motor vehicles and lounge were destroyed in
a fire, he suspected Ms
Du Toit was involved and she was charged in connection therewith.
My overall impression of
the plaintiff was that of a credible and satisfactory witness. His
evidence on matters pertaining to Ms
Du Toit was not placed in
dispute, and Ms Du Toit herself was not called as a witness for the
defence. Plaintiff’s evidence as
corroborated by Mr Hall, that he
was arrested without a warrant, was however disputed by both
Inspectors Leonard and Stevens.
Inspector Leonard’s vague and even confusing testimony as to which
warrant of arrest was used and the evidence as recorded in the
incident book that the warrant had been handed in for safekeeping,
did not help clarify the situation. No great store was however
placed on this point of departure by the parties and it was neither
pursued nor clarified during the trial. Instead the case proceeded
on
the assumption that an undated warrant of arrest was relied upon to
effect plaintiff’s arrest. Attention was focused instead
on
analyzing the validity of an undated warrant. It may well be that
whilst the second and third defendants relied on the warrant
to
arrest plaintiff, it was not actually shown to him.
The above notwithstanding, regard being had to plaintiff’s general
demeanour and the quality of his evidence as a whole, I accept
plaintiff’s testimony. I add also that plaintiff’s version
withstood the rigours of cross-examination.
Inspector Leonard by contrast performed poorly
under cross-examination and was not as satisfactory a witness. She
was unable to adequately
explain how she had come to the view that
there were reasonable grounds to suspect that Ms Du Toit may suffer
imminent harm on the
basis of the information placed before her.
With regard to the threatening note, Inspector Leonard conceded that
the additional
statement mentioned the plaintiff as the suspected as
opposed to confirmed author thereof. She conceded that the tenor of
the additional
statement was not hysterical and the statement made no
reference to Ms Du Toit having to flee from her flat. When asked why
she
had not investigated further before arresting the plaintiff she
replied, “
I should have done it, but I
didn’t
”.
Further, with regard to the additional statement, she could not
clarify why, if it was handed to her on 28 September 2002, it had
been signed only on the following day, 29 September, nor why the
statement had only been recorded in her events diary on Sunday 29
September 2002. She however vehemently denied that she had only
received this statement on 29 September 2002 after the arrest of
the
plaintiff and the suggestion implicit therein that she had
collaborated with Ms Du Toit to effect plaintiff’s arrest.
Crucially,
Inspector Leonard gave no indication that in considering
whether Ms Du Toit may suffer imminent harm, she had taken cognisance
of
the mandatory factors set out at section 8(5) of the Act, namely
the risk to her safety, health or well-being, the seriousness of
the
plaintiff’s conduct comprising the alleged breach and the length of
time since it had occurred.
Perhaps as disturbing was Inspector Leonard’s inability to explain
why on the evidence before her she had elected to arrest plaintiff
under section 8(4)(b) of the Act, as opposed to hand him a notice to
appear in court under section 8(4)(c). She appeared not to
understand that she could elect not to arrest the plaintiff, nor to
appreciate the distinction between sections 8(4)(b) and 8(4)(c)
of
the Act and that it was the former section only which provided for an
arrest. She professed to understand the procedure to be
that even
where a person is issued with a written notice in terms of section
8(4)(c), such person must be arrested and then brought
to court, her
understanding of sections 8(4)(b) and 8(4)(c) of the Act erroneously
being that both sections call for an arrest.
She however conceded
when directed to the regulations and specifically to form 11, being
the notice given to a person to appear before
court in terms of
section 8(4)(c), that the form made no reference to arrest. That
form, she said, was not used at the Lansdowne
Police Station.
Whilst Inspector Leonard conceded that she had a
duty to use her discretion properly in deciding whether to arrest the
plaintiff,
she was unable to satisfactorily explain how she had
exercised her discretion with reference to the standards set by the
Act. Inspector
Leonard could also not enlighten the Court why she
had written in her investigation diary on the morning of Friday 27
September
with reference to the plaintiff, the words, “V
erdagte
sal gearresteer word
” before she had
even read the contents of the file and properly acquainted herself
with the case. The best she could offer by
way of explanation was
that because the plaintiff had broken a condition of the protection
order, he had to be brought before court
in one or other manner and
for this he had to be arrested.
Nor could Inspector Leonard say why she had not taken the trouble to
read the incident book entry (of 1:10am on the Saturday morning),
by
Sergeant Van Wyk, when she came on duty later that morning. She
conceded that had she done so, she would have known about the
arrangement on the Friday night not to arrest the plaintiff. She
could throw no light on how Sergeant Van Wyk had obtained documents
from the file on the Friday night and handed them in for safe
keeping, given that she had locked the file in her office before she
went on duty.
Other aspects which Inspector Leonard was unable to clarify were:
- Why in her statement in preparation for this case, she had omitted
to state that Ms Du Toit was hysterical, had to flee from her
flat
and that she was in imminent harm;
- Why
her entry in the incident book on Saturday 28 September at 17:00 did
not record the reason for the plaintiff’s arrest, or
the charge
against him;
- Whether
she had used the original warrant of arrest to effect the plaintiff’s
arrest. Whilst she contended that she had used the
original warrant,
she did not dispute that this document had been handed in for
safekeeping by Sgt Van Wyk on the Friday night.
The final witness was Mr Le Riche, the Magistrate
of the Caledon Magistrates’ Court who granted the interim and final
protection
orders. He was called by the defence to testify about the
validity of the undated warrant of arrest and non served protection
order.
Mr Le Riche conceded that the warrant of arrest issued by him
did not comply with the requirements as prescribed by the regulations
under the Act. Although the warrant was approximated on the
prescribed form 8,
7
all the information specified at form 8 had not been completed
thereon including the date. He accepted that it was impossible to
ascertain from the warrant itself when it had been issued but said
this did not detract from its validity. Once a warrant was issued,
he said, it was valid and remained so even if on the return day a
protection order was withdrawn. In that event, it was the
responsibility
of the clerk of the court to inform the police station
to which the warrant had been sent, of the situation and request that
the
warrant be returned. In a case like the present where an undated
warrant of arrest had been issued ten months previously, had the
police officer been in doubt of its validity, she ought, in his
opinion, to have phoned the Kleinmond police station to investigate
its validity.
On the question of service, (or lack thereof) of the final protection
order upon the plaintiff, Mr Le Riche explained that the practice
at
the Caledon Magistrates’ Court at the time the protection order
against the plaintiff was granted, was for the clerk of the
court to
serve a copy of a final order by ordinary post upon a respondent. He
admitted that this practice was at odds with section
6(5)(a) of the
Act, read with section 15 of the regulations, which provided for
service by registered post. This, he said, did not
detract from the
validity of the final order, nor did the lack of service do so.
Was plaintiff’s
arrest unlawful?
In order for plainitiff’s arrest to have been lawful, it must have
occurred pursuant to the issue of a valid protection order and
valid
warrant of arrest as contemplated at section 8(1) of the Act. In
addition, his arrest must have followed upon the proper exercising
of
a discretion to arrest him by Inspector Leonard in accordance with
sections 8(4) and (5) of the Act. I shall consider each of
these
requirements in turn.
Mr Eia for the plaintiff submitted that the
failure to serve the protection order rendered it invalid. To
ascertain the validity
of the unserved protection order, one needs, I
believe, look no further than the Act itself. The Act does not
state that service
of a final protection order is a condition for its
validity. As emphasised by Mr Jacobs for the defendants, the Act at
section 6,
in providing for the issue of a (final) protection order,
does not specifically hinge the validity and efficacy thereof upon
its
being served as it does in respect of an interim protection
order. Section 5(6) expressly provides that an interim protection
order
shall have no force and effect until it has been served on the
respondent. The Act does not similarly state that a final protection
order shall have no validity until it is served. Section 6(5), which
refers to the service of a final order, merely states that
upon the
issue of a protection order, the clerk of the court must forthwith
and in the prescribed manner cause the original to be
served upon the
respondent,
8
and a certified copy thereof, together with the warrant of arrest to
be served on the complainant.
9
Thereafter, section 6(6) mandates the clerk of the court to forward
certified copies of the final protection order and the warrant
of
arrest to the police station of the complainant’s choice.
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,
10
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 service of an interim protection order, subsequent
proceedings cannot ensue, prescribing as it does
11
that proper service of an interim protection order is a prerequisite
for the issuing of a final order.
In this way a final protection order cannot be issued against a
respondent who has not been given notice of the proceedings and
afforded
an opportunity to respond on the return day. The validity
of a final protection order lies, therefore, not in its service but
in
its issue by the Court. Once issued and valid it is the
responsibility of the clerk of the court (and not that of an
applicant as
in the case of a civil interdict), to effect service of
a final protection order upon a respondent.
Likewise, the validity of a warrant of arrest lies 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 this specific warrant, it being undated and contrary
to the
regulations and prescribed form, whilst a serious omission, does not
in my view detract from its validity.
I accordingly find that the plaintiff’s arrest occurred pursuant to
a valid protection order and valid warrant of arrest as contemplated
at section 8(1) of the Act.
I
now turn to consider the all important question as to whether
Inspector Leonard properly exercised the discretion entrusted to her
in arriving at the decision to arrest the plaintiff. In order for me
to pronounce that she did so exercise her discretion, I must
conclude
that plaintiff’s arrest was in accordance with section 8(4) of the
Act, and that Inspector Leonard applied the standards
specified at
section 8(5) in arriving at the decision to arrest him.
These sections, as quoted above, make clear that,
for Inspector Leonard to have been permitted to arrest the plaintiff
in terms of
the Act, it would have had to appear to her that there
were
reasonable grounds to suspect
that Ms Du Toit may suffer
imminent harm
as a result of the alleged breach of the protection order. Moreover,
in considering whether or not Ms Du Toit may suffer imminent
harm,
Inspector Leonard must have taken into account the mandatory factors
at section 8(5), namely, the risk to Ms Du Toit’s safety,
health or
well-being; the seriousness of the conduct comprising plaintiff’s
alleged breach of the protection order and the length
of time since
it occurred.
The term ‘reasonable grounds to suspect’ has
enjoyed considerable attention by our courts. In
R
v Van Heerden
1958 (3) SA 150
(T) at
152E Galgut, AJ (as he then was) stated that:
“
[t]hese words must be interpreted objectively and the grounds
of suspicion must be those which would induce a reasonable man to
have
the suspicion.”
See
also
S v Nell
1967
(4) SA 489
(SWA);
S v Purcell-Gilpin
1971 (3) SA 548
(RA);
Minister of Law
and Order and Others v Hurley and Another
1986 (3) SA 568
(A) at 579E-580E;
Ralekwa v Minister of Safety and Security
2004 (2) SA 342
(T) at 346A.
Similarly the phrase ‘reasonable suspicion’
has been oft considered particularly within the context of
section
40(1)(b)
of the
Criminal Procedure Act, 51 of 1977
. The section
permits an arrest by a police officer without a warrant where the
arrestor “reasonably suspects” the arrestee of
having committed
an offence. In
Ramakulukusha v
Commander, Venda National Force
1989
(2) SA 813
(V) at 836I-837B Van Der Spuy AJ held that there must be
an investigation into the essentials relevant to the particular
offence
before it can be said that there is a reasonable suspicion
that it has been committed.
How the reasonable man arrives at a reasonable
suspicion, was succinctly described by De Vos J in
Ralekwa
(
supra
) at
347E-G:
“
To
decide what is a reasonable suspicion there must be evidence that the
arresting officer formed a suspicion which is objectively
sustainable.” It was described thus by Jones J in
Mabona
and Another v Minister of Law and Order and Others:
12
'Would a reasonable man in the second
defendant's position and possessed of the same information have
considered that there were good
and sufficient grounds for suspecting
that the plaintiffs were guilty of conspiracy to commit robbery or
possession of stolen property
knowing it to have been stolen? It
seems to me that in evaluating this information a reasonable man
would bear in mind that the
section authorises drastic police action.
It authorises an arrest on the strength of a suspicion and without
the need to swear out
a warrant, ie something which otherwise would
be an invasion of private rights and ... (t)he reasonable man will
therefore analyse
and asses the quality of the information at his
disposal critically, and he will not accept it lightly or without
checking it where
it can be checked. It is only after an examination
of this kind that he will allow himself to entertain a suspicion
which will justify
an arrest.'”
13
As to what comprises ‘imminent harm’, the
Concise Oxford English Dictionay defines imminent as, “
about
to happen
”.
14
In
Abakor Ltd v Crafcor Farming (Pty)
Ltd t/a Riversdale Feedlot and Another
2000 (1) SA 973
(N)
Magid
J at 978F-G described ‘imminent’ as follows:
“
If something is possible or even likely it
is not true to say that it is ‘imminent’, which word connotes an
event which is both
certain and is about to occur.”
‘
Imminent
peril’ is described in West’s Legal Thesaurus Dictionary
15
as
“such position of danger to the
plaintiff that if existing circumstances remain unchanged injury to
the plaintiff is reasonably
certain.”
The
phrase “imminent harm” finds expression in the Canadian Criminal
Code
16
.
The Ontario Court of Appeal in
R v Adams
17
described the concept as follows:
“
it
is the danger of harm of a certain degree of immediacy that activates
the protection ... That is to say a harm which is impending
threateningly, ready to overtake or coming on shortly
.”
It is safe to say therefore that ‘imminent harm’ is harm which is
about to happen, if not certain to happen.
Inspector Leonard displayed little appreciation for the concepts
‘reasonable grounds to suspect’ and ‘imminent harm’ or the
yardsticks prescribed by the Act for considering whether imminent
harm may be suffered. Likewise she displayed little understanding
of
how objectively one might arrive at ‘reasonable grounds to
suspect.’ There is no indication that Inspector Leonard in arriving
at her decision to arrest the plaintiff, employed the standards set
out at subsections 8(4) and 8(5). At best she arrested the plaintiff
on the basis of:
the complainant’s insufficiently substantiated say so that she
feared for her life because of plaintiff’s threatening behaviour;
the contents of the threatening note and Ms Du Toit‘s report that
she fled her home on receipt thereof;
the additional statement which named the plaintiff as the suspected
author of the threatening and abusive note.
She had tested none of these. Absent from Inspector Leonard’s
testimony was any indication that she had taken into account the
risk
plaintiff’s alleged threats posed to Ms Du Toit or indeed the
seriousness of the threats as required by the Act. One gained
the
impression that in deciding to arrest the plaintiff, Inspector
Leonard was so swayed by the hysterical demeanour and persistence
of
Ms Du Toit, and her own desire to help her that she failed to
sufficiently and objectively scrutinize and consider the information
before her.
A proper consideration of the additional
statement, dated 28 September 2002, would have revealed that the
plaintiff and his lawyer
had attended at the Lansdowne Police Station
the previous night but he had not been arrested. As much appears
explicitly in the
statement, as is quoted above. Such revelation
ought logically to have prompted Inspector Leonard to enquire about
Friday night’s
events. Had she done so, she would have learnt that
her superiors had decided at about midnight the previous night that
there were
not
reasonable grounds to suspect that Ms Du Toit may suffer imminent
harm and accordingly the plaintiff was not arrested.
This information one assumes would have lead her to consult with her
superiors as to whether the novel events which transpired between
Friday and Saturday, namely the receipt of the threatening note by Ms
Du Toit and her reaction thereto, were reasonable grounds to
suspect
she was in danger of imminent harm. This is an exercise which
Inspector Leonard would in any event have had to perform when
confronted with the note on her arrival at work on Saturday: Did the
contents of the note provide reasonable grounds to suspect that
Ms Du
Toit may suffer imminent harm? The contents of the note, whilst
cause for considerable concern, do not in my view convey the
message
that harm to Ms Du Toit is reasonably certain and about to occur.
The additional statement by Ms Du Toit dated 28 September 2002,
refers to the novel incident of the note as follows:
“
When
I arrived home last night at about 11:50pm I emptied my mailbox and
found a threatening letter which I can only suspect is from
Nazeer
Seria. I telephoned the Lansdowne SAPS immediately and reported the
receipt thereof. I was told to bring the letter to my
appointed D/
Inspector Stevens”
.
The
statement refers to the plaintiff as the
suspected
author of the threatening note. Inspector Leonard ought to have
considered whether this, measured against the factors prescribed
at
section 8(5), uncorroborated and on its own, provided reasonable
grounds to suspect that Ms Du Toit may suffer imminent harm.
An
exercise of this nature would have required her to objectively and
critically assess the quality of the information before her,
prompted
her to investigate further (a fact which she herself conceded under
cross-examination), and at the very least caused her
to have
confronted the plaintiff with the note. Only thereafter should she
have allowed herself to entertain a suspicion leading
to the
plaintiff’s arrest.
I am of the view that the abusive note and statement certainly
provided grounds for the plausible inference that the plaintiff was
the note’s author. It did not however provide reasonable grounds
for a suspicion, in the absence of further investigation that
Ms Du
Toit may suffer imminent harm. Inspector Leonard simply did not
investigate further and thereby failed as a reasonable police
officer
to properly exercise the discretion entrusted to her at sections 8(4)
and 8(5) of the Act. She consequently failed to consider
whether
there were good and sufficient grounds for taking the harsh step of
depriving the plaintiff of his liberty.
Had
that exercise been conducted and the discretion entrusted to
Inspector Leonard under section 8(4)(b) been properly applied, she
ought in my view, not to have arrested the plaintiff, but to have
proceeded instead in terms of section 8(4)(c) and handed him a
notice
to appear in court on a charge of contravening the protection order.
18
For the information before her provided insufficient grounds for
forthwith effecting an arrest under section 8(4)(b), but certainly
sufficed for apprehending him under section 8(4)(c). Sadly Inspector
Leonard’s understanding of the Act did not enable her to
distinguish between an arrest under section 8(4)(b), where imminent
harm is present, and a non arrest under section 8(4)(c).
In the circumstances the effect of Inspector Leonard incorrectly
choosing to act under section 8(4)(b) as opposed to section 8(4)(c)
of the Act, is that plaintiff’s arrest by the second and third
defendants was both unlawful and wrongful, and the first defendant
as
their employer is liable therefor.
I note in passing that a warrant of arrest in the hands of a
complainant of domestic violence is a powerful tool which can be used
or indeed abused to secure the arrest of a person against whom a
protection order has been granted. Consequently section 8(4)(b)
entrusts an enormous responsibility to police officers asked to
effect arrests, a responsibility which must be exercised with care
and wisdom, striking an equitable balance between the rights of
complainants and those of respondents who may be deprived of their
liberty.
The Act is a commendable and long awaited addition to our
jurisprudence promoting the rights of equality, freedom and security
of
the person. In their endeavours to rout out the serious social
evil that domestic violence is, it is incumbent on police officers
to
be properly acquainted with the Act so that its provisions are
equitably and fairly applied. In making these comments, I am mindful
of how difficult it must sometimes be for police officers to strike
this balance when confronted with domestic violence and its
accompanying
emotional trauma and turmoil.
Before turning to consider the issue of
quantum
,
I express my concern at the deficits inherent in both the warrant of
arrest and the service (or lack thereof) of the final protection
order. The issuing of an undated warrant of arrest contrary to the
regulations, as well as the failure to serve the final protection
order in the prescribed form, are irregular and unfortunate acts by
the clerk of the Caledon Court, which cast aspersions on our
justice
system. The prejudice to the plaintiff occasioned by these omissions
was evident.
Also of concern is the non cohesive manner in which the investigation
of Ms Du Toit’s case was conducted at the Lansdowne Police
Station.
Clearly had there been proper communication within that police
station about events between Friday 27 September and Saturday
28
September 2002, the defendants in this case may well not have been
faced with a claim for unlawful arrest. In the light of these
comments a copy of this judgment will be sent to the Caledon and
Wynberg Magistrates’ Courts as well as to the Lansdowne Police
Station.
Quantum
of plaintiff’s claim
There is no fixed formula for the assessment of
damages for non patrimonial loss. It is recognized that a court has
the power to
estimate an amount
ex aequo
et bono
and consequently enjoys a wide
discretion, with fairness as the dominant norm.
19
In
Pitt v Economic Insurance Co Ltd
1957 (3) SA 284
(D)
Holmes J stated at 287E-F:
”
I have only to add that the Court must take
care to see that its award is fair to both sides - it must give just
compensation to the
plaintiff, but it must not pour out largesse from
the horn of plenty at the defendant’s expense
.”
Amounts previously awarded in comparable cases
provide a general indication of what is fair and appropriate
compensation. In
Hulley v Cox
1923 AD 234
at 246 Innes CJ commented that
“a
comparison with other cases can never be decisive; but it is
instructive.”
Previous awards are
updated to current value, invariably employing the consumer price
index.
20
Fairness requires me to consider all relevant factors in the
circumstances of this case. Distilled from the undisputed facts are
the following salient features. The plaintiff is in his fifties, a
parent and a grandparent. He is an architect, well known in
the
community where he lives and works. He is not in good health. He
has a heart condition and suffers from high blood pressure.
He
experienced what could only have been the excruciating humiliation of
being arrested in the presence of guests he was entertaining
at his
home on a Saturday afternoon. Thereafter he suffered the further
humiliation of spending some three and a half hours in full
view of
the public at the Lansdowne Police station, close by, until he was
locked up for the night at the Athlone Police cells, most
of the time
with a drug addict. He was unlawfully deprived of his liberty for
approximately twenty hours and described the indignity
of his
detention as the worst experience of his life.
As against this it must be borne in mind that plaintiff’s arrest
was neither a case of mistaken identity, nor an act of malice.
It
arose out of a complaint that he had breached a protection order
which had been granted against him. A warrant for his arrest
had
been issued simultaneously with the granting of the protection order.
Mr Jacobs, for the defendants cited as a
comparable case,
Stapelberg v
Afdelingsraad van die Kaap
1988 (4) SA
875
(C) in which a young attorney on honeymoon in Cape Town, whilst
helping an old man to place notices under car windscreen wipers,
was
assaulted by a traffic inspector and then wrongfully arrested and
detained for two hours. He was awarded R10 000 in 1988, an
amount
which Mr Jacobs fixed currently at R44 000. On the basis of that
award, he submitted R30 000 would constitute reasonable
compensation
in the circumstances of this case. Given that the plaintiff’s
detention was some 18 hours longer, than that in the
Stapelberg
case, I can see no justification for his receiving less than the
award in that case.
Mr Eia for plaintiff cited two comparable cases:
Areff
v
Minister Van Polisie
1977 (2) SA 900
(AD) and
Ramakulukusha v Commander,
Venda National Force
(
supra
).
In the former case an Indian businessman, arrested and detained for
two hours, purportedly for contempt of Court after he had
torn up a
summons, and subjected to the humiliation of being fingerprinted, was
awarded R1 000 in 1977, an amount estimated by Mr
Eia to be R18 285
in today’s terms. In
Ramakulukusha
a businessman of good standing was wrongly arrested for the ritual
murder of a young child, and thereafter detained for eight days
during which time he was viciously assaulted. In 1989 he was awarded
an amount of R15 000 for the arrest and R20 000 for the detention,
the current value of which is R56 940 and R75 920 respectively.
Then there are the following awards: In
Todt
v Ipser
1993 (3) SA 577
(A) a woman
estate agent unlawfully arrested and kept overnight at Pollsmoor
Prison in August 1988, was awarded a mere R4 000, which
at current
value would amount to R17 128. In
Bentley
and another v McPherson
1999 (3) SA 854
(E) a 45 year old housewife and grandmother, in poor health,
wrongfully arrested on charges of kidnapping her grandchild, was
awarded
R15 000 for being unlawfully deprived of her liberty for nine
and a half hours. She suffered the humiliation of her arrest being
witnessed by people in the street. The current value of this award
is R33 810.
Finally and more recently in
Liu
Quin Ping v Akani Egoli (Pty) LTD t/a Gold Reef City Casino
2000 (4) SA 68
(W) a 45-year old Chinese businessman was awarded
damages in the amount of R12 000 for unlawful arrest and contumelia.
He was arrested
in 1998 at a casino, in the presence of the public,
friends and business acquaintances, on suspicion of contravening
regulations
promulgated under the Gauteng Gambling Act
21
,
and was detained for approximately four hours at the casino.
Escalated to today’s value the award amounts to R18 108.
It has been acknowledged that awards by South
African Courts have tended to be lower than those in most countries.
22
Visser and Potigieter comment that
“
[a]
t
present voices are raised in favour of the view that courts should
place a high premium on personality interests and that this attitude
should be reflected in the quantum of satisfaction.”
23
In
Liu Quin Ping
(
supra
)
Claasen J at 86D–F aptly states:
“
Deprivation of one’s liberty is always a
serious matter. This contention is reflected in the fact that our
Constitution has entrenched
the freedom and security of the person as
part of the Bill of Rights. Section 12 of the Constitution of the
Republic of South Africa
Act 108 of 1996 states the following:
‘
(1) Everyone has the right to freedom and security of the
person, which includes the right –
not to be deprived of freedom arbitrarily or without just cause;
not to be detained without trial.’
In a constitutional dispensation where our Bill of Rights rules
and regulates the affairs of men, it would seem to me to follow that
an infringement of such an entrenched right protected by the
Constitution may very well attract a larger measure of damages than
under a system where citizens were not accustomed to the protection
of entrenched rights.”
Courts, I believe are tasked with the duty of upholding the rights to
liberty, safety and dignity of the individual and in so doing
have a
responsibility to accord an appropriate and proper value thereto,
especially in the light of the extent to which these rights
were
devalued, indeed negated, in the brutal past of this country.
Regard being had to all of the above, the circumstances of
plaintiff’s arrest, its duration and nature, its distressing effect
upon him, his standing, the absence of malice on the part of the
defendants, and awards in comparable cases, I come to the view that
a
fair and proper award for the deprivation of plaintiff’s liberty,
occasioned by his unlawful arrest would be R50 000.
Costs
Given that this case raises matters of considerable complexity which
are in the public interest, concerning the interpretation of
the
recently promulgated
Domestic Violence Act, I
am satisfied that costs
can be awarded on the High Court scale, even though the amount of
damages ultimately awarded is within the
Magistrate’s Court
jurisdiction.
The following order is made:
1. The first defendant is ordered to pay plaintiff
the sum of R50 000 in damages in respect of his unlawful arrest and
detention;
2. The first defendant is to pay the plaintiff’s
costs of suit on the High Court scale as between party and party.
YS
MEER
IN THE CAPE HIGH
COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
REPORTABLE
CASE NO: 9165/2004
In the matter
between:
NAZEER
AHMED SERIA Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY 1
ST
Defendent
DETECTIVE
INSPECTOR (F) L LEONARD 2
ND
Defendent
DETECTIVE
INSPECTOR W STEVENS
Intervening Creditor
JUDGMENT BY : MEER,
J
For
the Plaintiff : Adv. P EIA
Instructed
by : Mr P F Burger
E
Moosa, Waglay & Petersen
Perbro
House
85
Klipfontein Road
RONDEBOSCH
7700
For
the Defendents :
and
Intervening Creditor : Adv. D JACOBS
Instructed
by : Mr A A Duminy
The
State Attorney
4
th
Floor Liberty Life Centre
22
Long Street
CAPE
TOWN 8000
Date(s)
of hearing : 02, 03, 04, 05, 10 & 11 August 2004
Judgment
delivered : Friday, 15 October 2004
1
Granted
in terms of section 6 of the Act
2
See
for example the Domestic Violence Act, 86 of 1995, of New Zealand;
the Family Law Act, 1996, of the United Kingdom; The Domestic
Violence Act, 1996, of Ireland; The Domestic Violence Protection
Act, 2000, of Ontario, Canada and the Domestic Violence Bill of
India.
3
S
1 of the Act
4
See s 8(4)(b) as discussed below.
4
5
The
offences referred to in s 17(a) are the contravention of any
prohibition, condition, obligation or order imposed in terms of
s 7.
6
Regulation
9 of the regulations promulgated in terms of the
Domestic Violence
Act No 116 of 1998
, Regulation Gazette No 6666 - 5 November 1999,
Vol. 413 No 20601
7
Annexed
to the regulations
8
S
6(5)(a)
9
">
9
S
6(5)(b)
10
">
10
Erasmus
Superior
Court Practice
B1-20
11
at
section 6(1)(a)
12
">
12
2>
PAN LANG="en-US">
1988
(2) SA 654
(SE);
S
v Purcell-Gilpin
1971
(3) SA 548
(RA)
at
554C-D
13
More
recently the phrase ‘reasonable grounds to suspect’ has been
considered as it appears within the context of the
National
Prosecuting Authority Act, 32 of 1998
.
Section 29(5)(b)
of that Act
permits the issue of a search warrant by a judicial officer where
there is a reasonable suspicion of the actual or
attempted
commission of a specified offence. See in this regard
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others; In Re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) at paras 35-38 and 44-52.
14
Tenth
edition 2002 Oxford University Press
15
1985,
West Publishing Company
16
at
section 285 thereof
17
1993
18 W.C.B. (2d) 462 at para 48
18
As
provided for at s 8(4)(c)(ii)
19
Visser
and Potgieter
Law
of Damages
,
(Second Edition) 2003 Juta, Lansdowne, pp 438 para 15.2.24, pp
448-449 para 15.3.1
20
Corbett
and Honey in
The
Quantum of Damages in Bodily and Fatal Injury Cases,
Volume V, Juta (Lansdowne) at lxiv – lxix
cite
the application of the consumer price index as the most reliable
basis for updating previous comparable awards.
21
Act
4 of 1995
22
See
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA) para 27 and citation of unreported judgment of
Broome DJP in
Wright
v Multilateral Vehicle Accident Fund,
a 1997 decision of the NPD (as cited in
Corbett
and Honey
vol IV E3-36)
23
Law
of Damages
(
supra
)
at p 449