2 (2) Interest on the amount of R400 000.00 from date of judgment to date in full at
the rate prescribed in the Prescribed Rate of Interest Act, from time to time;
(3) Costs of suit, to be taxed on Scale B.
JUDGMENT
D MARAIS AJ
The plaintiff’s case as pleaded
[1] In this action, the plaintiff, Ms Marina Venette Wilson, instituted action against
the defendants, the Minister of Polic e, as first defendant , and the National
Director of Public Prosecutions , as second defendant, for payment of damages
in the amount of R500 000.00 for unlawful arrest and detention.
[2] The plaintiff’s claim against the Minister of Police is based on the allegation that
on 19 November 2020 she was unlawfully arrested without a warrant of arrest
by member s of the South African Police Service , acting within the cou rse and
scope of their employment with the Minister of Police .
[3] It was also alleged that when the plaintiff was arrested the relevant member of
the SAPS did not apply his mind or failed to exercise his discretion when
arresting the plaintiff.
[4] The plaintiff alleged that the arrest was unlawful because the pl aintiff did not
commit the offence of “violation of a protection order ”.
[5] The plaintiff then , somewhat paradoxically, also alleged in the alternative that if
the plaintiff’s arrest was justified, then her detention was unlawful in that the
arresting officer “knew that there were no reasonable grounds to arrest and
detain the plaintiff”.
3 [6] In the further alternative, it was pleaded that if the plaintiff’s initial arrest was
lawful, then the senior police official on duty or the investigat ing officer
unlawfully failed to release the plaintiff on warning in terms of the Criminal
Procedure Act, 197 (“CPA”) .
[7] The case against the National Director of Public Prosecutions (NDPP) was
based on an allegation that the public prosecutor failed to study the information
placed before him or h er at the plaintiff’s firs t appearance in the Magistrates’
Court on 19 November 2020 , failed to study the police docket , failed to inform
the court that there were no reason to further detain the plaintiff and failed to
consent to bail.
[8] A further allegation against the member(s) of the SAPS , as an alternative to the
allegation against the NDPP in paragraph [7 ] above, was that the SAPS failed
to provide necessary information to the public prosecutor during the hearing of
the matter in the Magistrate s’ Court, resulting in the refusal of bail and the
continued detention of the plaintiff after the first appearance in court.
[9] It was finally pleaded that the case against the plaintiff was remanded until 26
November 2020, when she was released on bail, and that during July 2021 she
was acquitted on a charge of contravening a protection order . Regarding the
latter allegation, it was common cause that the plaintiff was discharged after the
State case in terms of section 174 of the CPA.
Claim against NDPP aban doned
[10] At the commencement of the trial of this matter, the plaintiff abandoned the
claim against the National Director of Public Prosecutions . As will be evident
hereunder, the abandonment of the claim against the NDPP was correctly
done, as on the facts o f this matter, the claim against the NDPP was completely
unjustified.
Discussion of the plaintiff’s cause of action
4 [11] The plaintiff’s claim against the Minister of Police is one of damages for the
unlawful deprivation of her freedom, resulting from her unlaw ful arrest and
detention.
[12] It is important to note that as far as the plaint iff’s detention after her first
appearance in court is concerned, the plaintiff principally sought to hold the
NDPP liable , but in the alternative alleged that the SAPS failed to place
information before the prosecutor relevant to the granting of bail, with the result
that bail was refused.
[13] The latter allegation does not appear to be intended to support an independent
delictual cause of action against the Minister of Police, separate from the claim
based on the alleged initial unlawful arrest and detention (which is notionally
possible) .
[14] In the premises, the plain tiff’s particulars of claim should be interpreted on the
basis that the plaintiff is relying on the commi ssion of a single delict , being the
initial unlawful arrest, and is claiming damages on that single basis for the entire
duration of the plain tiff’s detention (including the period after her first
appearance in court until she was released on bail on 26 No vember 2020) .
[15] The plaintiff also did not seek to split her claim for damages between the
damages up to the first appearance in court, and the damages suffered after
her first appearance. She claimed one globular amount.
The defences raised by the defenda nts
[16] The defendant s raised special plea s that the plaintiff failed to comply with
certain statutory notice requirements. Based on allegations of non -compliance
with the statutory notice provisions, a conditional plea of prescription was also
raised. These special plea s were also abandoned at the commencement of the
trial and need not be considere d.
[17] The defendants’ defences against the plaintiff’s claims can be summarised as
follows:
5 a. That o n 19 November 2019, at approximately 08h35, plaintiff was
lawfully a rrested by a member of the South African Police Services
stationed at Sophiatown Police Station, in execution of a warrant issued
under the provisions of section 11(1)(a) of the Protection from
Harassment Act 17 of 2011 (“PHA”) upon receipt of a complaint, from
one Rashieda Mohammed, that plaintiff had violated the final protection
order granted by the Johannesburg Magistrate's Court, in her favour,
under the provisions of Act 17 of 2011 on 30 January 2020.
b. It was alleged that the arresting officer had r easonable grounds to
suspect that the complainant and her family were suffering or may suffer
imminent harm as a result of the breach of the Protection Order by the
Plaintiff .
c. Subsequent to her lawful arrest, Plaintiff was lawfully detained, in terms
of se ction 50 of Act 51 of 1977, in the cells at Sophiatown Police Station,
under cell register reference SAP14186/11/2019 and was charged under
Sophiatown Police Station CAS 203/11/2020 for violating the final
Protection Order granted by the Johannesburg Magis trate's court.
d. Plaintiff was lawfully detained until 08h55 on 20 November 2019 when
she was taken to court.
e. At plaintiff's first appearance at court on 20 November 2019 the
prosecution enrolled the matter on the basis that they held an honest
belief fo unded on reasonable grounds that the institution of the criminal
proceedings against the Plaintiff was justified .
f. It was admitted that:
i. The p laintiff was afforded a section 174 (Act 51 of 1977) discharge on
23 July 2021 and
ii. That t he relevant members of the South African Police Services and
court prosecutor/s, were acting within the course and scope of
their respective employment with First and Second Defendants.
6 g. The other allegations made by the plaintiff were denied , including
allegation that the plai ntiff suffered damages as a result of the arrest and
detention.
Onus of proof and duty to begin
[18] It was correctly accepted that the onus to prove the lawfulness of the plaintiff’s
initial arrest and detention was on the Minister of Police. Consequently, the first
defendant assumed the duty to begin leading evidence in the matter.
[19] As such, the Minister of Police clearly also did not view the defendant’s
allegation that the SAPS failed to provide information to the prosecutor as a
separate st andalone claim in respect of which the onus may have been on the
plaintiff.
Status of the police docket and record of proceedings in the Magistrates’ Court
[20] At the commencement of the trial, the parties agreed to admit into evidence a
copy of the relevant p olice docket , charge sheet and court record.
Witnesses
[21] The investigating officer in this matter, Constable S andile Mkhize , regrettably ,
died before the hearing of this trial and the first defendant called as its only
witness Mr Riebeeck Anthonie Burger, a public prosecutor , who testified that
he was the public prosecutor on 19 November 2020 when the plaintiff first
appeared in court , and on 26 November 2020, when the plaintiff was released
on bail. He was an excellent witness and provided valuable information to the
court regarding the police docket, the events in court and the question regarding
the granting of bail to the plaintiff. However, his evidence is obviously of limited
value, as he was not involved in the decision to arrest the plaintiff . His evidence
also did not traverse all the relevant issues in this matter.
[22] There are certain affidavits by the investigating officer in the police docket ,
including a statement regarding the alleged arrest of the plaintiff. These
statements, having been a dmitted in evidence by agreement, obviously also
7 have limited evidential value due to the absence of Constable Mkhize and the
lack of cross -examination in respect thereof .
[23] The plaintiff energetically and emotively testified in support of her own case .
She used an interesting and colourful vernacular of Afrikaans, which the
interpreter sometimes , quite reasonably, had difficulty in interpreting, despite
doing an exceedingly good job in general and for which he must be highly
commended. The energetic, fast pa ced manner in which the plaintiff testified ,
evidently also permeated the process by which she gave instructions to her
counsel , with the result that there was some confusion regarding the sequence
of events during her evidence. This was cleared up in a satisfactory manner
during her evidence. In general , the plaintiff was a satisfactory witness , who
gave a detailed account of the events and made concessions where such
concessions were justified. Her factual evidence was also not really disputed
during cr oss-examination . To the extent that her evidence must be treated with
circumspection , in view of the fact that the investigating officer died and was
not available to testify , I am satisfied that her evidence was generally
acceptable.
[24] The result of this is that the facts of this matter were largely common cause.
The parties diverge on the conclusions to be drawn from the available facts.
The protection order against the plaintiff and suspended warrant of arrest
[25] It is common cause that the complainant in the matter obtained a final protection
order in terms of PHA against the plaintiff on 30 January 2020 . This order was
also served on the plaintiff on 30 January 2020 , and she was fully aware of the
order.
[26] The order interdicted the plaintiff from :
a. Engaging in or attempting to engage in harassment of the complainant;
b. Insulting the complainant; and
c. Physically abusing the complainant .
8 [27] The c ourt also ordered the plaintiff not to accost the complainant and not to
have any contact with the complainant directly or indirectly , including social
media contact.
[28] In terms of PHA a warrant for the arrest of plaintiff was issued, but sus pended
subject to compliance by the plaintiff with the terms of the order.
The legislative framework of PHA
[29] PHA has been enacted to make provision for the issuing of protection orders to
prevent harassment.
[30] “Harassment” is defined in the Act as meaning directly or indirectly engaging in
conduct that the respondent knows or ought to know causes harm or inspires
the reasonable belief that harm may be caused to the complainant or a related
person by unreasonably:
a. following, watching, pursuing or accosting of the complainant or a related
person, or loitering outside of or near the building or place where the
complainant or a related person resides, works, carries on business,
studies or happens to be;
b. engaging in verbal, electronic or any other communication aimed at the
complainant or a related person, by any means, whether or not
conversation ensues; or
c. sending, delive ring or causing the delivery of letters, telegrams,
packages, facsimiles, electronic mail or other objects to the complainant
or a related person or leaving them where they will be found by, given
to, or brought to the attention of, the complainant or a re lated person .
[31] The definition also includes sexual harassment , which is further defined in the
Act.
[32] Sections 2 , 3 and 9 of the Act make provision for the granting of an interim and
final protection order against a respondent who engaged in harassment of an
9 applicant, or a related person. Section 10 provides the court with wide powers
to make an order aimed at preventing harassment.
[33] In the present matter, the provisions of section 11 are of importance. Section
11(1) provides that when a court makes a protecti on order it must make an
order authorising the issuing of a warrant of arrest of the respondent and
suspend the execution of the warrant subject to compliance with the order by
the respondent.
[34] Section 11(4) (a) provides that a complainant may hand the warr ant of arrest,
together with an affidavit in the prescribed form stating that the respondent has
contravened any s pecified prohibition, condition, obligation or order contained
in a protection order, to any member of the South African Police Service.
[35] Section 11(4)(b) provides that if it appears to the member of the South African
Police Service concerned that, subject to subsection (5), there are reasonable
grounds to suspect that the complainant or related person is suffering harm or
may suffer imminent h arm as a result of the alleged breach of
the protection order by the respondent, the member must immediately arrest
the respondent for allegedly committing the offence referred to in section 18
(1) (a).
[36] Section 11(4)(c) provides that i f the member of the S outh African Police Service
concerned is of the opinion that there are insufficient grounds for arresting the
respondent in terms of paragraph (b), he or she must immediately hand to the
respondent a written notice in the prescribed form, which -
a. specifies the name, the residential and work address and the occupation
or status of the respondent;
b. calls upon the respondent to appear before a court on the date and at
the time specified in the notice, on a charge of committing the offence
referred to in section 18 (1) (a); and
c. contains a certificate signed by the member of the South African Police
Service concerned to the effect that he or she handed the original notice
10 to the respondent and that he or she explained its import to the
respondent .
[37] Section 11(5) states that, i n considering whether or not the complainant or
related person is suffering harm or may suffer imminent harm, as provided for
in subsection (4) (b), the member of the South African Police Service must take
into account the :
a. risk to the safet y or well -being of the complainant or related person;
b. seriousness of the conduct comprising an alleged breach of
the protection order;
c. length of time since the alleged breach occurred; and
d. nature and extent of the harm previously suffered by the complainan t or
related person.
[38] Section 18 (1) determined that, n otwithstanding the provisions of any other law,
any person who -
a. contravenes any prohibition, condition, obligation or order imposed in
terms of section 10 (1) or (2); or
b. in an affidavit referred to in s ection 11 (4) (a), makes a false statement
in a material respect,
is guilty of an offence and liable on conviction to a fine or imprisonment for a
period not exceeding five years.
[39] In terms of regulation 24 of the Protection from Harassment Regulations, 2013 ,
it was prescribed that an affidavit referred to in section 11(4) (a) of the Act in
which it is stated that the respondent has contravened any prohibition,
condition, obligation or order contained in a protection order must be in a form
which corresponds substantially with Form 22 .
[40] Form 22 provides for detail of the parties and the formal detail of the protection
order to be contained in the affidavit. It also requires the complainant to indicate
11 whether a copy of the protection order indicating what orders were made by the
court and the original warrant of arrest are attached, or to state why a copy of
the protection order and/or the original warrant of arrest cannot be attached .
[41] The form also requires the following information:
a. The date(s) of breach of protection order ;
b. Place(s) where breach of protection order took place:
c. Full details on how any specified prohibition, condition, obligation or
order contained in the protection order was breached ;
d. Reasons, if any, for believing that imminent harm may be suffered as a
result of the breach of the protection order by the respondent .
[42] The obvious purpose of PHA is to protect members of the public from
harassment . The ordinary meaning of “harassment” is repeated harmful
conduct against a victim . A single event cannot be regarded as harassment .
The extended definition of “harassment ” in PHA is not a model of clarity, but on
a proper interpretation relates to repeated conduct.
[43] A protection order in terms of PHA is in essence a statutory interdict. PHA
created a new statutory offence, and created a new mechanism whereby an
alleged contemnor can be arrested by any member of the SAPS upon an
affidavit being presented by a complainant that the protection order was
breached . This is a far-reaching departure from the common law, in terms of
which a contemnor can only be imprisoned for contempt of court on application
to the court . In such a common law contempt application the alleged contemnor
can escape a sanction by merely creating reasonable doubt as to whether he
or she wilfully disregarded the court order. Importantly, an order will only be
granted if the principles of audi alteram partem had been complied with.
[44] A complainant can also lay a charge of contempt of court against an alleged
contemnor . A variety of other complaints in relation to common law offences
can also be laid. The SAPS must then act in accordance with the C PA in
securing the attendance of the alleged perpetrator . Notably, contempt of court
12 is not a CPA Schedule 1 offence for which a person can be arrested without
warrant of arrest. Usually , contempt of court would not justify an arrest , and the
alleged contemnor should be brought before the court by way of a summons.
The situation will be different if the contemnor is simultaneously also accused
of other serious crimes.
[45] In an ideal world, only actual victims who are themselves unblemishe d make
use of the law to protect themselves. However, experience teaches that often
people abuse the law for their own unlawful purposes, and that the abuse of
process is used as a form of harassment.
[46] Whilst PHA was designed to protect innocent victims , the reality is that the Act
finds application in a robust environment where the participants may be less
than scrupulous , and the complainant may also be a perpetrator of harassment ,
other crimes and also perjury. The facts of this matter illustrate this; after a n
eventual trial the Magistrate found the complainant and her husband’s evidence
so improbable and contradictory that the court in essence rejected it out of hand
and discharged the plaintiff in terms of CPA section 174. For this to happen, the
quality of the complainant’s evidence must have been exceedingly poor.
[47] Against thi s background , it could never have been the purpose of PHA to
infringe upon the alleged contemnor ’s constitutional rights of freedom, dignity
and a fair trial. The Act must accord ingly be interpreted as far as possible to be
consistent with these fundamental rights.
[48] To the extent that PHA created a special mechanism whereby an alleged
contemnor can be arrested, at the same time it created strict requirements that
must be present be fore a person can be arrested. Notably, a person cannot be
arrested for simply contravening the protection order. PHA requires that the
member of the SAPS must have reasonable grounds to suspect that the
complainant or related person is suffering harm or may suffer imminent harm
as a result of the alleged breach of the protection order . The Act then, in
peremptory terms, requires the police official to take certain mandatory factors
into consideration .
13 [49] For an alleged contemnor to be arrested in terms of PH A, there must obviously
be compliance with these requirements. If the requirements of PHA for an arrest
are not present, then the Act makes provision for a notice to appear in court.
Alternatively , the SAPS must make use of the CPA to secure the alleged
offender’s presence in court.
The incidents allegedly constituting a breach of the protection order by the
plaintiff
[50] On 8 November 2020 , 9 November 2020 and 12 November 2020 there w ere
incident s of an unpleasant nature involving the complainant and the plaintiff , as
well as their respective families . The plaintiff gave evidence regarding the se
incidents during the trial, but it is not necessary for purposes of this matter to
make a finding regarding the exact events that took place.
[51] What is of importance in the present matter is that the complainant approached
the SAPS on 13 November 2020 and made a complaint that the plaintiff had
contravened the protection order and deposed to an affidavit to that effect. This
affidavit was not on the prescribed Form 22 . The following was , inter alia , stated
by the complainant:
a. That on 8 November 2020 the plaintiff’s daughter , acting under
instructions from the plaintiff, smashed the window of a car belonging to
the complainant’s family and as a result her husband opened a case of
malicious damage to property against the plaintiff and her daughter;
b. After the aforesaid incident, at about 12h30 during the evening of
Sunday, 8 November 2020, the plaintiff passed the complainant’s house
and swore at the plaintiff, calling her an “aids bitch”, that she would see
to it that members of the Fast Guns gang would rape the complainant . It
was also alleged that the plaintiff instigated her daughter to “throw the
complainant’s daughter with bricks” . By this the complainant presumably
mean t to say that bricks were hurled at her daughter .
14 c. On 9 November 2020 the plaintiff and her daughter were allegedly
arrested in relation to the damage to the car windscreen but were
released on unk nown conditions.
d. At about 16h00 on 9 November 2020, the plaintiff passed the
complainant and stated that the complainant “will get what is coming to
her” as she “knows people”. The plaintiff stated that the complainant will
not live to see the new year and that her son, Jermaine Booysens , will
“take care” of t he complainant’s husband, as he (Jermaine) is a member
of the Fastguns.
e. On 12 November 2020 at about 14h30 the plaintiff again passed the
complainant’s house and started swearing at the complainant, calling
her a “witch” and a “black -hearted bitch” , whose witchcraft will not work
on her. She repeated that the complainant was an “aids -bitch” and a
prostitute who was selling her body to the Varodo gangsters. She also
said that she will make sure that her husband would lose his firearm, and
that her husband will die before the end of the year.
f. At this time, the plaintiff’s son, Jermaine Booysens , stood with her and
also swore at them, threatening the complaina nt’s husband , saying that
he must “watch his back”.
[52] The fact that the affidavit was not made on the prescribed form was clearly not
fatal, as the regulation required the affidavit to be substantially in accordance
with the form. Consequently , the question is whether the affidavit complie d
materially with the requirements. Notably, the affidavit did not particularly deal
in full detail with the manner in which any aspect of the protection order was
contravened. It was left to the reader to analyse the allega tions and assess
whether the order was contravened.
[53] Importantly, the affidavit did not deal with the question whether the complainant
had any belief that imminent harm may be suffered as a result of the breach of
the protection order by the respondent .
15 Did the investigating office arrest in the plaintiff in terms of PHA and was there
compliance with PHA?
[54] As indicated above PHA section 11(4) (b) provides that i f it appears to the
member of the South African Police Service concerned that there are
reasona ble grounds to suspect that the complainant or related person is
suffering harm or may suffer imminent harm as a result of the alleged breach
of the protection order by the respondent, the member must immediately arrest
the respondent for allegedly committ ing the offence referred to in section
18(1)(a).
[55] It is evident from the affidavit made by the complainant that extremely serious
threats were allegedly made towards her by the plaintiff, which was not confined
to swearing and insults, but included the thre at that the plaintiff would
orchestrate the rape and killing of the complainant .
[56] Despite the apparent seriousness of the allegations, the investigating officer did
not arrest the plaintiff immediately after the complaint was made. The
complainant’s affida vit was not accompanied by the warrant of arrest, as
required . The investigating officer had to first obtain the warrant from the
complainant , which he did on 14 November 2020. Even then he did not arrest
the plaintiff. Instead, h e only interviewed the plaintiff on 17 November 2020 in
connection with this charge and after informing her of her rights (evidenced also
by a written acknowledgement by the plaintiff to that effect), obtained a written
warning statement from her, and allowed the plaintiff to go free without being
arrested.
[57] These events were intertwined with the case against the plaintiff’s daughter for
allegedly breaking the car windscreen , and the allegation that the plaintiff
instructed her to do so. On the plaintiff’s evidence , both she and her daughter
were arrested on this charge , but both were released on warning to appear in
court on the 19th of November 20 020.
[58] It does not appear from the evidence that the investigating officer took the
complainant’s allegations too seriou sly. The police docket indicate that the
complainant’s complaint was about “swearing” , and this was repeated in an
16 affidavit which he made at the request of the public prosecutor in respect of the
question of bail , as will be more fully dealt with hereunder.
[59] The immediate temptation is to criticise the investigating officer for taking the
complainant’s serious complaints so lightly , but consideration must be given to
the fact that the plaintiff deposed to a warning statement on 17 November 2020,
in which she also made certain allegations of abuse committed by the
complainant against her , including an allegation that the complainant had stated
to her that her husband will shoot and kill her son, Jermaine , just like her other
son had “gevrek” . The Afri kaans word “vrek” is similar in meaning with the word
“sterf” (die), but the proper use of the word is confined to the death of animals.
Properly interpreted, the complainant, therefore, allegedly stated to the plaintiff
that her son Jermaine would be shot and killed, just like her other son was
dispatched like an animal. A statement like this is made with absolute contempt
for human life . In her statement the plaintiff also denied th e complainant’s
allegations and stated that all she wanted was peace.
[60] The situation that confronted the investigating officer under the circumstances
was that two members of the community were allegedly hurling crude and
uncivilised abuse at each other . In the process they were making serious
threats against each other . The inve stigating officer clearly did not interpret the
serious threats the parties made against each other literally . Under the
circumstances, he seemingly acted wisely in regarding this tit for tat with
circumspection . In this regard, it is of note that the publ ic prosecutor , after the
plaintiff’s first appearance in court, requested the investigating officer to assist
the plaintiff in opening her own case against the complainant.
[61] The plaintiff’s undisputed evidence is that on 18 November 2020 the
investigating officer left her a message, requesting her to report to the police
station on 19 November 2020 .
[62] It must be noted that an offence in terms of section 18(1) of PHA is an offence
in terms of Schedule 1 of the Cri minal Procedure Act, 1977 , being “a ny offence
. . . the punishment wherefor may be a period of imprisonment exceeding six
months without the option of a fine ”.
17 [63] In terms of section 40(1)(b) of the Criminal Procedure Act, a peace office may
arrest a person whom he reasonably suspects of having committed an offence
referred to in Schedule 1, without a warrant of arrest.
[64] However, the Minister of Police did not raise the defence that the plaintiff was
arrested in terms of section 40(1) (b), nor was this possible defence ventilated
during the trial before me. There is intricate detail and thought processes
involved in the question whether an arrest without a warrant was justified .
Consequently, in the circumstances of this matter, this is not a defence that
may be entertain ed. There is also no indication on the evidence, tested or not,
that the plaintiff was arrested in terms of section 40(1)(b), or could have been
arrested in terms of that section without a warrant of arrest.
[65] The defence raised by the Minister of P olice was confined to the allegation that
the SAPS had executed the warrant of arrest issued in terms of section 11(1)
of PHA, specifically because there was allegedly a threat of imminent harm .
[66] Constable Mk hize’s affidavit does not reveal that he was in any way motivated
by considerations of imminent harm in arresting the plaintiff. He expressly
stated that the plaintiff handed herself over for contravening the protection
order , and that he then arrested her. There is no indication that he considered
hims elf to have a discretion in the matter , as provided in PHA, nor does his
affidavit indicate that he applied him mind to any of the mandatory
considerations provided for by the Act. In a subsequent affidavit that he made
in respect of the question of bail, he stated that the complaint was about
“swearing” and made no allegation that the plaintiff should be denied bail
because of the threat of imminent harm to the complainant .
[67] PHA obliges a police officer to immediately (“must immediately”) arrest the
alleged perpetrator upon information of a breach of the order and imminent
harm being received in the prescribed manner. The investigator officer clearly
did not deem it necessary to immediately arrest the plaintiff , and clearly did not
act in t erms of PHA in arresting the plaintiff.
[68] In this regard, the investigating officer’s affidavits do not support the defence
pleaded by the Minister of Police and the probabilities are overwhelming that
18 he never arrested the plaintiff on the basis of any threat of imminent harm as
pleaded.
[69] More fundamentally, the investigating officer’s affidavit also does not even
reveal that the plaintiff was arrested on the basis of the warrant of arrest issued
in terms of PHA, as pleaded by the Minister of Police.
[70] The plaintiff’s evidence seems to suggest that the investigating officer dealt with
the matter on a rather informal manner. Having requested her to come to the
Police Station, he then told her that he was going to take her to court . She then
got into a motor v ehicle with him and was taken to the “Westgate Court” , as the
Johann esburg Magistrates’ Court is referred to colloquially. There she was
taken to the holding cells, and detained.
[71] The plaintiff testified t hat she was arrested with out a warrant of arrest . On her
evidence, there is no indication that the investigating office r reveal ed the
existence of the warrant to her , nor that he informed her that he was executing
a warrant of arrest. In this regard, apart from putting it to the plaintiff that there
was a warrant for her arrest in terms of PHA, the plaintiff’s version was not
materially challenged. The investigating officer’s simple version, that the
plaintiff was arrested for contravening the protection order , without any
reference to the warrant of arr est or any specific motivation for the arrest, is
also not incompatible with the plaintiff’s version that she was arrested without
a warrant.
[72] In the final analysis, there is no evidence is support of the defence raised by
the Minister of Police that the pl aintiff was arrested in the execution of the
warrant , because of the fear or imminent harm. Consequently, the Minister
failed to discharge onus resting on it to demonstrate the lawfulness of the arrest.
Release on warning
[73] The plaintiff also alleges that upon her arrest she should have been released
on warning by the SAPS in terms of the CPA .
19 [74] However, despite the plaintiff’s reliance on the CPA in this regard, this issue is
in reality intertwined with the defence pleaded by the Minister, based on the
provisions of PHA .
[75] Where the investigating officer clearly did not deem it necessary to arrest the
plaintiff immediately for the safety of the complainant , he was required by
section 11(4)(c) of PHA to refrain from arresting the plaintiff and shoul d have
given the plaintiff a written notice to appear in court on a charge of contravening
section 18(1) of PHA.
[76] From the finding that the investigating officer did not arrest the plaintiff in terms
of PHA, it automatically follows that she should have giv en a written warning to
appear in terms of PHA . Although this was not exactly the point made by the
plaintiff, the facts from which this conclusion follows have been fully ventilated
and there would be no prejudice to the Minister if the matter is approach ed on
this basis.
[77] Consequently, I ag ree that the plaintiff should have been given a written
warning to appear. I hold, however, that the plaintiff should not have been
arrested at al l.
Conclusion regarding the lawfulness of the arrest and initia l detention
[78] Consequently, I hold that the plaintiff’s arrest at about 8h00 on 19 November
2020 was unlawful, as well as her detention until at least her first appearance
before the Mag istrates’ Court later that morning .
The continued detention of the plaintiff after her first appearance in court
[79] Regarding the plaintiff’s continued detention after the postponement of the case
until 26 November 2020, t he plaintiff alleg ed that the SAPS acted unlawfully by
not placing evidence before the court that would hav e lead to her release on
bail at her first appearance in court on 19 November 2020 .
20 [80] Very little, if any attention was given to this aspect during the trial and it does
not contribute much to the adjudication of this matter. It is also an issue which
can become very speculative and hypothetic in the circumstances of this
matter .
[81] The bottom line is that the plaintiff should not have been arrested and held in
custody. The issue of bail should never have arisen in this matter.
The issue of causation in relation to the plaintiff’s continued detention
[82] In De Klerk v Minister of Police 2021 (4) SA 585 (CC) the majority of the court
held that the question of the Minister of Police’s liability for an accused ’s
detention after the first appearance depends on the question of causation. The
mere fact that the initial arrest and detention was unlawful does not
automatically result in the continued detention being unlawful. Conversely, the
mere fact that the initial arrest and detention was lawful does not automatically
result in the continued detention being lawful.
[83] The court held that the Minister of Police’s liability for continued detention after
the first appearance, where the initial arrest was unlawful, depends on the
application of the traditional condictio sine qua non – test (also expressed as
the “but -for test ”), coupled with considerations of legal policy to prevent limitless
liability. In this regard, the for eseeability of the harm or damage also plays a
role. The question is also whether the failure by the court to grant bail was a
novus actus interv eniens , which disrupted the causal chain.
[84] Thus , in De Klerk the Constitutional Court held that at all times when the SAPS
unlawfully arr ested the applicant it was foresee n that the magistrate would upon
the first appearance simply postpone the matter for a period and that the
accused would remain in custody for that period . Consequently, the court held
that the “but -for” test was satisfied , in that , but for the unlawful arrest, the matter
would not have been postponed at the first appearance. Policy considerations
dictated that liability should not be limited for this factual consequence.
[85] In the present matter, there is no suggestion on the evidence that the magistrate
in the reception court of the Johannesburg Magistrates’ Court was oblivious or
21 indifferent to his or her statutory and constitutional obligations regarding the
granting of bail. However, this matter demon strates a systemic issue with very
practical realities and consequences. The reality is that after arrest an accused
person is brought before a reception court, which is on all accounts a very busy
court. The evidence is that such court can have up to 50 cases on the roll o n
any given day. If it is optimistically assumed that the court actually sits for five
to six hours per day, this means that there is six to seven minutes available per
case. The evidence is that an indigent accused who elects to make use of a
Legal Aid at torney is systemically forced into a hurried consultation with the
attorney . If the matter is uncomplicated and bail is for good reasons not
opposed by the State , this may effectively result in accused being release d on
bail forthwith without much time bei ng spent . However, various factors may
complicate the issue of bail , which may require , sometimes unjustifiably, the
accused to bring a formal bail application , with the onus being on the accused
to show why it is in the interest of justice that he or she be released on bail. In
a busy reception court having 50 matters on the roll, the court clearly has no
capacity to hear formal bail applications on the first appearance. Nor would an
accused person , especially an indigent person, be in a position to bring a formal
bail application on the first appearance. The systemic reality is that it is a
forgone conclusion that if the accused need s to bring a formal bail application,
the matter will be postponed for that purpose. In the process there is a high risk
that lip service will be paid to the accused person’s statutory and constitutional
rights.
[86] The plaintiff’s evidence , which I have no reason to doubt, was that her first
appearance in court was a rushed event, during which there was no real
opportunity for her to be advised by , or consult with , the Legal Aid attorney .
While she had no understanding of the process, her matter was postponed
without bail being fixed.
[87] In Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) paras 40 -41
the principles relating to factual causation were described as follows:
22 “Although different theories have developed on causation, the one
frequently employed by courts in determining factual causation is
the condictio sine qua non theory or but -for test. This test is not without
problems, especially when determining whether a specific omission
caused a certain consequence. According to this test the enquiry to
determine causal link, put in its simplest formulation, is whether 'one
fact follows from another'. The test –
"may involve the metal elimination of the wrongful conduct and
the substitution of a hypothetical course of lawful conduct and
the posing of the qu estion as to whether upon such an
hypothesis plaintiff's loss would have ensued or not. If it would
in any event have ensued, then the wrongful conduct was not a
cause of the plaintiff's loss; [otherwise] it would not so have
ensued. If the wrongful act is shown in this way not to be a causa
sine qua non of the loss suffered, then no legal liability can
arise."
In the case of "positive" conduct or commission on the part of the
defendant, the conduct is mentally removed to determine whether the
relevant cons equence would still have resulted. However, in the case
of an omission the but -for test requires that a hypothetical positive act
be inserted in the particular set of facts, the so -called mental removal
of the defendant's omission. This means that reasonab le conduct of
the defendant would be inserted into the set of facts. However, as will
be shown in detail later, the rule regarding the application of the test in
positive acts and omission cases is not inflexible. There are cases in
which the strict applic ation of the rule would result in an injustice,
hence a requirement for flexibility. The other reason is because it is
not always easy to draw the line between a positive act and an
omission. Indeed there is no magic formula by which one can generally
establish a causal nexus. The existence of the nexus will be dependent
on the facts of a particular case. ”
[88] It is said that the “but -for” test requires the judge to think away the relevant
unlawful conduct that is potentially the cause of the harm and then ask whether
the harm would have ensued in any event. If it would have ensued in any event ,
the relevant conduct is not factually the cause of the harm. On the facts of De
Klerk this process is relatively simple; if the accused person was unlawfully
arrested b ecause there were no grounds for forming a reasonable suspicion
that the person had committed an offence for which the person could be
arrested without a warrant, thinking away the unlawful arrest will quite simply
result in the conclusion that the continu ed detention after the first appearance
would not have eventuated . The accused would never have appeared in court
and the matter would never have been postponed . The causal link is evidently
there .
23 [89] However, as stated by the Constitutional Court , there are situations where , in
order to effectively apply the condictio sine qua non – test, the exercise entails
not merely discounting the perceived cause but also postulating a hypothetical
lawful course of events instead of the perceived cause.
[90] Regarding this possible hypothesis as part of the causation test, it must be
emphasised that the Minister did not rely on section 40(1)(b) of the CPA that
the arrest without a warrant was lawful , or that the plaintiff could have been
lawfully arrested in term s of section 40(1)(b). Consequently, the h ypothetical
possibility that the plaintiff could have been lawfully arrested in terms of section
40(1)(b) and lawfully brought to court on that basis cannot be introduced
through the back door in the context of factual causati on.
[91] In the present matter, it will be appropriate for the investigating officer’s unlawful
conduct to be substituted with lawful conduct on his part in the application of
the “but -for” test. As I held above, if the investigating officer acted lawfully in
terms of PHA , in the absence of evidence that he considered the complainant
to be in imminent danger, he should have given the plaintiff a notice to appear
in court, instead of arresting her. If this had happened, the plaintiff would not
have been in custo dy at her first appearance in court, and there would have
been no need for her to apply for bail. The matter against her would have been
remanded and she would have been warned to appear at the next hearing. The
harm inherent in her continued detention wou ld not have occurred.
[92] Consequently, there is a direct causal link between the unlawful conduct of the
SAPS and the plaintiff’s cont inued detention after her first appearance in court.
[93] It is now trite law that an unlawful arrest does not necessarily render the
enrolment of the matter unlawful. If there is a prima facie case against an
accused which justifies a prosecution, the unlawful arrest does not render the
proceedings in court unlaw ful. This was confirmed in De Klerk. In the present
matter, there was a prima facie case against the plaintiff that she contravened
section 18(1) of PHA. Consequently, the public prosecutor correctly decided to
prosecute the plaintiff and correctly enrolle d the matter.
24 [94] Did this valid action on the part of the prosecutor constitute a novus actus
interveniens which legally disrupt ed the causal chain? In my view the valid
decision on the part of the prosecutor to enrol the case is irrelevant to the
question o f causation in casu and did not constitute a novus actus intervenien s.
The simple fact is that if the investigating office r acted lawfully and gave the
plaintiff a written notice to appear in court , the prosecutor would have decide d
to prosecute and would have enrolled the matter in any event , and the plaintiff
would have been warned to appear on the next date. The issue of bail would
never have arisen. The valid decision is a neutral factor as far as causation is
concerned.
[95] In this regard, I am of the view that the same reasoning app lies to the question
whether the Minister’s liability should be limited on the basis of policy
considerat ions. I perceive no valid considerations to limit the Minister’s liability.
[96] The Minister of Police lead extensive evidence by the prosecutor regarding the
procedure to be followed in terms of section 60 of the CPA regarding bail
applications. The prosecutor displayed a high degree of knowledge and
competence in his evidence , whic h clearly accorded with the provisions of the
CPA. His evidence is summarised in what follows.
[97] Schedule 5 of the Criminal Procedure Act includes an offence , being an offence
referred to in Schedule 1 :
a. where the accused has previously been convicted of an offence referred
to in Schedule 1; or
b. which was allegedly committed whilst he or she was released on bail in
respect of an offence referred to in Schedule 1.
[98] The plaintiff was previously convicted of malicious damage to property.
Consequently, the Schedule 1 offence the plaintiff allegedly committed was ,
objectively, also a Schedule 5 offence.
25 [99] Even prior to the amendment of the Criminal Procedure Act in 2022, the plaintiff
was obliged to inform the court of any prior convictions she may have, and any
pending case in respect of which she was on bail.
[100] The record of proceedings reflect that the plaintiff failed to inform the court of
her previous convictions , which included not only a previous conviction on a
charge of malicious damage to property, but also common assault.
[101] The importance of this is that in terms of section 60 (11)(b) of the Criminal
Procedure Act, an accused may only be released on bail in respect of a
Schedule 5 offence if the accused convinces the court by evidence that hi s or
her release on bail is in the interests of justice. In this inst ance the onus is on
the accused to demonstrate why it was in the interest of justice that he or she
be released on bail. This also means that the accused must make application
for bail and must place the necessary evidence before the court.
[102] Currently s ection 60(11)(c) , read with section 59(1), provides that a person
charged with the contravention of section 18(1) of PHA shall be kept in custody ,
unless the accused, having been given a reasonable opportunity to do so,
adduces evidence showing that it is in the interests of justice that he or she be
released on bail. However, this subsection only became operative in 202 2 and
is not relevant herein.
[103] The undisputed evidence by the prosecutor was that he opposed bail on 19
November 2020, as he deemed it a risk f or the plaintiff to be released on bail ,
having regard to the serious allegations against the plaintiff . The plaintiff also
had another case against her pending for which she had to appear in court on
the same day (the case involving the damage to the comp lainant’s husband’s
car window) . Consequently, he asked the investigating officer to provide an
affidavit , setting out an overview of the differen t cases against the plaintiff.
[104] On 26 November 2020 there was an affidavit by the investigating officer in the
police docket, but such affidavit was inadequate and did not provide the detail
requested by the prosecutor . Importantly, at that stage, the plaintiff’s previous
convictions were not known, and the plaintiff, represented by a Legal Aid
26 attorney, expressly informed the court the plaintiff had no previous convictions .
In this regard, I hold that the plaintiff misled the court.
[105] The prosecutor testified that if the plaintiff revealed her previous convictions, as
she was obliged to do, in particular the maliciou s damages to property
conviction, which rendered the alleged offence a Schedule 5 offence, the
plaintiff would have been required to bring a formal bail application , as the onus
would have been on the plaintiff to show why she should be released on bail in
the interest of justice.
[106] As the previous convictions were not revealed at that stage, and the
investigating officer’s affidavit was inconclusive , the prosecutor then decided
not to oppose the granting of bail. Bail was granted by the court, but subject to
the condition that the plaintiff should reside at an alternative address, to avoid
conflict between the feuding parties .
[107] It was contended that the plaintiff was not entitled to be released on bail on 26
November 2020 , because objectively the offence she was accused of was a
Schedule 5 offence and the plaintiff failed to adduce the required evidence to
show that it was in the interests of justice that she be relea sed on bail.
[108] It is contended that t he fact that the plaintiff remained in custody after h er first
appearance was because she was obliged to bring a bail application and
adduce evidence, which she did not do on 19 November 2020 , and the matter
was postponed for a formal bail application on 26 November 2020 .
[109] Whilst the evidence by the prosecutor is correct with regards to the usual
procedure to be followed in bail applications, the Minister of Police’s argument
is fatally flawed and amounts to a petitio principii . Put more plainly, the
argument puts the cart before the horse. The Minster’s argume nt completely
loses sight of the fact that if the investigating officer acted lawfully by not
arresting the plaintiff, and by giving her a written notice to appear instead, it
would never have been necessary for the plaintiff to apply for bail at all. Where
the plaintiff was brought before court in an unlawful manner , in unlawful
custody, and where she should never have been in custody, it would be a
complete failure in logic and justice to argue that she was obliged to bring a bail
27 application and pers uade the court that she should be released from such
unlawful custody. Consequently, the fact that the plaintiff failed to disclose her
previous convictions and failed to bring a formal bail application is irrelevant in
the present matter. In any event, it is clear that the plaintiff would in any event
not have been able to bring a formal bail application during her first appearance ,
due to the systemic issues referred to above.
[110] In the premises, I hold that the Minister of Police is liable for the entire period
of the plaintiff’s detention, from 19 November 2020 to 26 November 2020.
Damages and compensation
[111] The plaintiff gave extensive evidence regarding the suffering she experienced
while she was in detention , not only in the court holding cells, but more
particularly at “Sun City” which is a n ironic reference , not to the well -known
entertainment resort and casino where patrons stay in luxury and international
golf tournaments are hosted , but indeed the Johannesburg Prison.
[112] On the plaintiff’s evidence, which was not disputed by the Minister,
unsentenced detainees are held in overcrowded circumstances . There are no
facilities which can be remotely regarded as decent . There is a lack of
protection from other criminals , and some criminals are allowed to control life
in the cells. I nhumane routines are implemented. In short, circumstances are
horrendous. Consequently, the plain tiff described her suffering while in
detention , in her ornate vernacular , as “’n bietjie baie” (literally translated as “a
little much”), which is a euphemistic way of stating that she suffered
tremendously. This statement , properly understood, accords with the detail of
her evidence and must be accepted.
[113] Despite the unlawfulness of the arrest , the investigating officer treated the
plaintiff with some respect and transported the plaintiff to the court in a motor
vehicle. He also took her to court immed iately and did not detain her for long at
the police station. However, this is a small consolation for the plai ntiff who was
held in custody for seven to eight days in horrendous conditions.
28 [114] Consequently, I find that there was a serious breach of the plaintiff’s
fundamental right s, which caused her great suffering, for which she must be
appropriately compensated.
[115] In De Klerk , the period of the unlawful detention was the same as in the present
matter , and the plaintiff was awarded the sum of R300 000.00 damages by the
Constitutional Court. This was in 2019. This equates to about R380 000.00
currently.
[116] I respectfully regard the award made in De Klerk as a good guideline in the
present matter. However, I have a discretion to determine the amount of
damages in accordance with the facts of the matter and the extent of the
suffering experienced by the plaintiff .
[117] As indicated a bove, the plaintiff experience d considerable suffering , which was
entirely foreseeable. Consequently , I am of the view that the amount that should
be awarded to the plaintiff should be higher than the amount that was awarded
in De Klerk , but that a conservative approach should still be followed.
Accordingly , I am of the view that an award of R400 000.00 would be
appropriate in the circumstances.
Costs
[118] The costs should follow the result.
[119] Although the claim against the NDPP was abandoned, in the circum stances of
this matter it is unlikely that any additional costs were incurred in respect of
such claim.
Order
In the circumstances , judgment is granted in favour of the plaintiff against the first
defendant, the Minister of Police, for :
(1) Payment of t he amount of R400 000.00;
(2) Interest on the amount of R400 000.00 from date of judgment to date in full at
the rate prescribed in the Prescribed Rate of Interest Act, from time to time;
1