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[2011] ZAWCHC 3
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Reynolds and Another v Minister of Safety and Security (5023/2008, 5024 / 2008) [2011] ZAWCHC 3; 2011 (2) SACR 594 (WCC) (8 February 2011)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
Case
No:
5023
& 5024 / 2008
In
the matter between:
JULIA
SHEILA REYNOLDS
1
st
Plaintiff
RALPH
RAY REYNOLDS
2
nd
Plaintiff
and
THE
MINISTER OF SAFETY AND
SECURITY
Defendant
REPORTABLE JUDGMENT :
08 FEBRUARY 2011
Judgment
:
BOZALEK,
J
Counsel
for Plaintiffs
:
Adv.
PE
Jooste
Instructing
Attorney
:
GP
Van Rhyn, Minnaar & Co.
Mr.
FA Swanepoel
Counsel
for Defendant
:
Adv. S Seria
Instructing
Attorney
:
State Attorney
Mr.
AA Duminy
Dates
of Hearing
:
15, 16, 17, 18 & 22 November 2010
Date
of Judgment
:
08
February 2011
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE
TOWN
Case No:
5023 & 5024 / 2008
In the matter between:
JULIA SHEILA REYNOLDS
1
st
Plaintiff
RALPH RAY REYNOLDS
2
nd
Plaintiff
and
THE MINISTER OF SAFETY AND SECURITY
Defendant
JUDGMENT : 08 FEBRUARY 2011
BOZALEK J:
This matter comprises two damages actions consolidated for the
purposes of trial. The first plaintiff is Mrs. Julia Reynolds
and
the second plaintiff is her son, Mr. Ralph Reynolds. Both sue the
Minister of Safety and Security for damages arising out
of what they
allege was their unlawful arrest in July 2006 by members of the
South African Police Services (SAPS) and their subsequent
detention
for a period of approximately 48 hours. The plaintiffs also seek
damages for alleged assaults upon them by such members
at the time
of their arrest. By agreement the court was requested to determine
the issue of the defendant’s alleged liability
before the
other issues.
The actions arise out of a domestic dispute between first plaintiff
and her husband, to whom I shall refer as the ‘complainant’,
at their residence in Parow on the night of 18 July 2006. Two SAPS
members spent nearly 3 hours in their residence before arresting
first plaintiff. They also arrested second plaintiff for allegedly
obstructing them in the execution of their duties, more particularly
for trying to prevent them from arresting the first plaintiff.
In her particulars of claim first plaintiff alleges that she was
unlawfully and wrongfully arrested without a warrant of arrest
and
thereafter unlawfully detained in the police cells. She alleges
further that the relevant SAPS members knew, or should have
known,
that no reasonable grounds existed for her initial arrest or her
subsequent detention and that the arrest was effected
animo
iniuriandi
. Second plaintiff’s claim is pleaded in the
same terms. In both instances the plaintiffs also alleged that they
were wrongfully
prosecuted, but at the hearing they disavowed any
reliance on this aspect of the pleaded claims.
The defences raised by the defendant to both actions were likewise
very similar. It was denied that the plaintiffs’ arrests
were
wrongful, unlawful or effected
animo iniuriandi
. It was
alleged that first plaintiff was lawfully and justifiably arrested
by the defendant’s servants, acting in the course
of their
employment, pursuant to the provisions of s 3 of the the
Domestic
Violence Act 116 of 1998
, read with the provisions of
s 40(1)(q)
of
the
Criminal Procedure Act 51 of 1977
; further that this was in
response to a complaint from the complainant that first plaintiff
had physically abused him and damaged
his property. It was pleaded
that police assistance was required in order to protect the
complainant from further abuse by first
plaintiff. In the
alternative, reliance was placed on the provisions of
s 40(1)(b)
of
Act 51 of 1977, namely, that there were reasonable grounds to
suspect that first plaintiff had committed First Schedule offences
i.e. assault, when a dangerous wound was inflicted, and malicious
injury to property.
In the case of second plaintiff it was pleaded that his arrest was
lawful and justified pursuant to the provisions of s 40(1)(j)
of Act
51 of 1977 in that he had wilfully obstructed peace officers in the
execution of their duties, namely, arresting first
plaintiff, and,
furthermore, that he had resisted his own arrest on this charge. In
relation to the assaults alleged by both
plaintiffs the defendant
pleaded that, in accordance with the provisions of s 49 of Act 51 of
1977, such force as was reasonably
necessary and proportionate had
been used to effect the plaintiffs’ arrest and overcome their
resistance thereto.
In broad terms then, the issues for determination are the lawfulness
of the arrest and detention of the plaintiffs and the related
issue
of whether the plaintiffs were assaulted in the course of their
arrest.
The only evidence led on behalf of the plaintiffs was that of first
plaintiff and, on behalf of the defendant, that of the arresting
officer, former Inspector Vos (“Vos”). Somewhat
surprisingly neither second plaintiff, nor any of the other police
officers involved in the incident testified. Although there was
agreement on the broad outline of what took place that night
there
was a considerable difference in the detail furnished by the
respective witnesses and it is necessary to summarise these
versions
and evaluate them.
FIRST PLAINTIFF’S EVIDENCE
At the time in question first plaintiff and the complainant had been
married for some 20 years. They had two sons, one being
the second
plaintiff then aged 20 years and residing with his parents. First
plaintiff testified that she and the complainant
went to bed early
that night. While her husband slept a message arrived on his cell
phone. When she studied it she discovered
a series of messages
between him and an internet dating service as well as a compromising
picture of himself. When first plaintiff
woke the complainant and
demanded an explanation he seized the cell phone and ran out of the
room, deleting the messages. First
plaintiff pursued him trying to
regain the phone so as to confront him with the messages which he
was denying. In the back yard
she saw a rake comprising a plastic
handle and an iron head. She grabbed the rake by its head and struck
at the phone in her
husband’s hands with the handle in order
to get it out of his grasp. In the process she accidentally struck
him on his
wrist. The complainant took refuge in the bathroom and
first plaintiff used a bar stool to knock on the door, as she put
it,
with a view to gaining entrance thereto, in the process causing
very slight damage to the door. The complainant managed to get
out
of the bathroom and left the house. First plaintiff retired to her
bedroom and, consoled by second plaintiff, cried herself
to sleep.
She awoke sometime later to the sound of voices in the lounge and
emerged to find Vos, accompanied by a policewoman,
interviewing her
husband.
First plaintiff testified that upon her asking the police what they
were doing there they told her that they were there on the
instructions of the complainant who had complained that she had hit
him and damaged property. She tried to explain the situation
to them
but they were ‘
not interested
’. She testified
also that she told them that it was a matter to be resolved between
herself and her husband and asked them
to leave but they refused.
First plaintiff went back to her room where she was joined by second
plaintiff. After some time the
policeman (Vos) came to her room and
told her that her husband wanted his wallet and car keys. If he
received these it would
be the end of the matter. Her response was
to give the police the keys and the wallet save one credit card
which she refused
to hand over because it gave access to a bank
account with a R150 000.00 credit mortgage facility in both their
names. Her concern
was that if the complainant got possession of the
card before she could stop the account he would squander these
monies. When
she refused to hand over the card the policeman radioed
for reinforcements and when, at the suggestion of the second
plaintiff,
she handed the card to him ‘for safekeeping’,
a policeman immediately said ‘hy is hardegat, gryp hom’.
The second plaintiff was then pinned to the bed face down, and
arrested. The first plaintiff tried to intervene and this is when
she was thrown to the ground. Two female police officers put their
knees on the back of her legs whilst one policeman put his
knee on
her neck. In this position she was handcuffed behind her back. At
the time she was dressed only in her nightclothes,
a top and long
pants, and in the scuffle her breast was exposed. First plaintiff
was placed in one police van and her son in
another. She was left
there for between 20 minutes to half an hour and then taken to Parow
Police Station where she was kept
overnight in the cells.
The following day she was interviewed twice by detectives and told
that she would only be released the following day after she
appeared
in court. After spending another night in the cells, again in what
she described as very unhygienic conditions, she
appeared in the
Bellville magistrates’ court on charges of assault with intent
to do bodily harm, malicious injury to property,
obstruction of the
police in their duties and resisting arrest. On her subsequent
appearance all charges were withdrawn.
Apart from the conditions in the police cells, first plaintiff
complained of the rough manner in which she was treated by the
police during and after her arrest, what she saw as their insulting
behaviour towards her and aspects of her failed attempt to
obtain
medical assistance that night. These issues are, however, not
material to a determination of the lawfulness of the arrest.
The
events of the night in question led to the estrangement of first
plaintiff and her husband and they were divorced not long
afterwards.
Second plaintiff was similarly detained at the Parow police cells
until he too appeared in the magistrates’ court some
48 hours
later and was released on his own recognisances on charges of
obstructing the police in their duties and, possibly,
resisting
arrest. Likewise, on his next appearance in court the charges were
withdrawn.
DEFENDANT’S CASE
On behalf of the defendant Vos, an officer with 17 years experience,
testified that he arrived at the scene in response to a
radio report
at about 22h00 on the night in question. He was accompanied by
student constable Ludick, a female officer on her
first night of
duty. Outside he encountered the complainant who advised that he had
been assaulted by his wife and chased around
the house. He appeared
to be in shock and showed a swelling on his right forearm. Inside
the house Vos encountered first and
second plaintiffs. The
complainant led him around, showing him a saucer-shaped hole in the
bathroom door and a long iron pipe
covered with green plastic.
Outside, the complainant showed Vos a garden fork which he said had
been used by the first plaintiff
to assault him. Vos took possession
of the garden fork and a steel pipe as well as a brick or half brick
which he found on the
scene. He was unable to indicate what role the
latter has played but vaguely recalled an allegation of damage to a
motor vehicle.
Vos stated that after being shown around the residence he listened
to the versions of both the complainant and first plaintiff.
According to him the latter did not take issue with the
complainant’s version. He then took a written sworn statement
from the complainant in the course of which first plaintiff locked
herself in her bedroom. The complainant wished to lay charges
against first plaintiff relating to the assault and damage to
property. After taking the statement Vos concluded that he was
dealing with an unusual incident of domestic violence in that there
was a visible injury as well as objects that had been pointed
out to
him as having been used in the incident. He regarded it as a more
serious instance of domestic violence which required
immediate
action. In these circumstances he decided to arrest first plaintiff
on the charge of assault GBH, in the context of
domestic violence,
and malicious injury to property.
Having made this decision he knocked on first plaintiff’s
locked bedroom door but to no avail. Accordingly he radioed for
reinforcements and sometime later Insp. Brand and student Constable
Jacobs, a female officer, arrived. He knocked again on the
door
whereupon it was opened. Upon entering he advised first plaintiff of
the charges against her and that he was placing her
under arrest.
She would not co-operate however and he instructed the two female
police members to arrest her and bring her under
control. When,
during the ensuing scuffle he took hold of first plaintiff’s
arm, second plaintiff jumped on his back and
put his arm around his
neck, trying to pull him (Vos) off his mother and in the process
choked Vos. Vos regarded second plaintiff’s
actions as
obstruction of the police in their duty and, after rolling him onto
the bed, placed him under arrest. Both plaintiffs
were handcuffed.
He stated that he remained on the scene for a minute or two before
taking first plaintiff to the Parow police
cells in the back of his
police van.
THE LAW
It is appropriate first to set out our law
regarding the requirements to prove an unlawful arrest and detention
where s 40 has
been invoked by the arresting officer. In
Minister
of Safety and Security v Tshei Jonas Sekhoto and Others
(131/2010)
[2010] ZASCA 141
(19 November 2010)
the Supreme Court of Appeal recently dealt with the jurisdictional
requirements for a valid arrest in terms
of
s 40(1)
of the
Criminal
Procedure Act 51 of 1977
, the nature of the discretion to be
exercised by the arresting officer and the onus of proof in such
matters. The court rejected
the notion, articulated
inter
alia
in
Louw
and Another v Minister of Safety and Security and Others
2006 (2) SACR 178
(T), that it is
constitutionally untenable for a police officer to exercise the
power to arrest without a warrant in terms of
s 40(1)
without first
having a reasonable apprehension that the suspect will abscond or
fail to appear in court if a warrant is first
obtained or a notice
or summons to appear in court is issued instead. The court held that
there was no ‘fifth jurisdictional
fact’ over and above
those in
s 40(1)
, the empowering provision for arrests without a
warrant.
1
The court found, however, that once the jurisdictional facts for an
arrest are present a discretion arises, since it is clear
from the
wording of the section that the officer is not obliged to effect an
arrest. It proceeded to analyse the nature of this
discretion
emphasizing that the decision to arrest must be based on an
intention to ‘bring the arrested person to justice’.
The
court, per Harms DP, cited examples of where persons were arrested
for an ulterior purpose and stated as follows:
‘
The
law in this regard has always been clear. Such an arrest is not bona
fide but in fraudem legis because the arrestor has used
a power for
an ulterior purpose. But a distinction must be drawn between the
object of the arrest and the arrestor’s motive
… object
is relevant while motive is not.’
2
The court then analysed the pre- and post-constitutional
requirements for the proper exercise of the arresting officer’s
discretion, focussing upon that of rationality. In this regard it
concluded:
‘…
it
remains a general requirement that any discretion must be exercised
in good faith, rationally and not arbitrarily.
This would
mean that peace officers are entitled to exercise their discretion as
they see fit, provided that they stay within the
bounds of
rationality. The standard is not breached because an officer
exercises the discretion in a manner other than that deemed
optimal
by the court. A number of choices may be open to him, all of which
may fall within the range of rationality. The standard
is not
perfection, or even the optimum, judged from the vantage of hindsight
and so long as the discretion is exercised within
this range, the
standard is not breached.’
3
Observing that the statute is silent on what factors a peace officer
must weigh up in exercising his discretion, the court stated:
‘
An
official who has discretionary powers must, as alluded to earlier,
naturally exercise them within the limits of the authorising
statute
read in the light of the Bill of Rights’.
4
Harms DP added:
‘
While
the purpose of arrest is to bring the suspect to trial the arrestor
has a limited role in that process. He or she is not called
upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or in some cases a senior
officer).
The purpose of the arrest is no more than to bring the suspect before
the court (or the senior officer) so as to enable
that role to be
performed. It seems to me to follow that the enquiry to be made by
the peace officer is not how best to bring the
suspect to trial: the
enquiry is only whether the case is one in which that decision ought
properly to be made by a court (or the
senior officer). Whether his
decision on that question is rational depends upon the particular
facts but it is clear that in cases
of serious crime – and
those listed in Schedule 1 are serious, not only because the
Legislature thought so – a peace
officer could seldom be
criticized for arresting a suspect for that purpose. On the other
hand there will be cases, particularly
where the suspected offence is
relatively trivial, where the circumstances are such that it would
clearly be irrational to arrest.’
5
Dealing with the question of onus the court
concluded that since the proper exercise of the discretion was not a
jurisdictional
fact for an arrest, the onus of proving this element
did not rest upon the arrestor. The court quoted with approval the
dictum
from
Minister of Law and Order
and Another v Dempsey
6
that a distinction must be drawn between the
forming of the required opinion i.e. the jurisdictional fact, and
the separate issue
of whether the opinion was improperly formed. In
the latter case it is for the party who makes the allegation to
prove it.
Applying the principles enunciated in
Sekhoto
to the present
matter, the jurisdictional facts required to be proved by the
defendant in relation to the arrest of the first
plaintiff would be
as follows:
(i) the arrestor must have been a peace officer;
(ii) the arrestor must have entertained a suspicion;
the suspicion must have been that the arrestee committed an act of
domestic violence as contemplated in
s 1
of the
Domestic Violence
Act 1998
and that act must constitute an offence in respect of which
violence is an element;
the suspicion must have rested on reasonable grounds.
As will become apparent I do not find it necessary to deal with the
alternative ground upon which the lawfulness of the arrest
is sought
to be justified, namely, the exercise of a discretion in terms of
s
40(1)(b)
of the
Criminal Procedure Act.
In the case of second plaintiff the jurisdictional facts would be –
‘
(i) the arrestor must have been a peace
officer;
(ii) the arrestee must have been wilfully obstructing the arrestor in
the execution of his duty.’
Should the defendant discharge the onus of
proving these jurisdictional facts, the question which then arises,
having regard to
Sekhoto
,
is whether the arrestor properly exercised his discretion to arrest
the plaintiffs. Although a failure to do so was not expressly
pleaded by the plaintiffs, that question was extensively addressed
both in evidence and in argument and is therefore an issue
which can
properly be determined by the court.
7
ANALYSIS
It was argued on behalf of first plaintiff that any assault on the
complainant was no more than a common assault whilst the damage
to
the bathroom door was of a trivial nature. It was contended further
that in any event the arresting officer had failed to
exercise his
discretion properly in the circumstances
inter alia
by
failing to either ascertain or take into account the relevant
circumstances.
It is first necessary to determine whether the defendant proved the
various jurisdictional requirements in respect of the arrests
of the
plaintiffs. It is common cause that Vos was a police officer and
that upon his arrival the complainant advised him that
he had been
chased around the house and assaulted by his wife. Although the
evidence is somewhat unclear, it appears that he
explained to Vos
that he had been struck on his right forearm with the garden rake
and showed him the fresh swelling which this
had caused. The rake
was one of the objects seized by Vos and removed from the scene.
There is no suggestion that first plaintiff
disputed this version in
the presence of Vos. She testified in court that it was not a
deliberate assault but an inadvertent
blow to the complainant’s
forearm with the handle of the rake while she was trying to retrieve
the cell phone.
This explanation seems unlikely, however. On her own evidence first
plaintiff was very angry about what she had discovered on
her
husband’s cell phone and that he was denying the allegations
and deleting the messages. It is more likely that she
deliberately
struck him. Similarly, it was undisputed that damage had been caused
to the door of the bathroom. On first plaintiff’s
version this
was a mere chipping of the paint but no evidence of the unrepaired
door, such as a photograph, was produced by first
plaintiff to
verify this, although as the remaining occupant, this would have
been easy for her to have obtained. Vos testified
that he found a
hole the size of a saucer in the door. Whatever the true extent of
the damage, on first plaintiff’s own
version she was banging
on the door with a bar stool. In a statement made by second
plaintiff in support of a subsequent complaint
to the police about
the events of that night, he described his mother as “hammering”
on the bathroom door with the
barstool.
In
s 1
of the
Domestic Violence Act, ‘domestic
violence’
is defined
inter alia
as:
‘
(a)
physical abuse; …
(h) damage to property;
…
where
such conduct harms, or may cause imminent harm to, the safety, health
or well being of the complainant.’
For reasons which will be considered later, Vos appeared never to
have heard a countervailing version of events from first plaintiff
regarding the alleged assault or malicious damage to property. In
the circumstances it appears that Vos, at the very least,
entertained a suspicion, based on reasonable grounds, that an act or
acts of domestic violence had been committed by first plaintiff.
The focus must now turn to the manner in which Vos exercised his
discretion to arrest without a warrant. He testified that he
decided
to arrest first plaintiff on the basis of the assault and malicious
injury to property which he considered had already
taken place but,
more importantly and primarily, because he foresaw the very real
possibility of first plaintiff committing further
assaults upon the
complainant should he not arrest her. In this context he described
her as a ‘dreigende gevaar’.
Vos’ state of mind is
best summed up by his response to a question from the Court as to
what indications there were that
the assaults would continue unless
he arrested first plaintiff. His answer was, in part:
‘…
ja,
dit is a baie dun lyn, ek hoor wat u sê … (onduidelik).
Die elemente, die pyp, die tuinvurk, me. Reynolds se houding
op die
toneel, die feit dat sy gaan wegkruip het, het my tot ‘n
gevolgtrekking gebring dat daar sterk moontlikheid is dat
aanranding
wel kan plaasvind. My hele siening was dat sy nie kalm was nie, nie
bedaard nie, nie selfbeheerd was nie … Dat
sy nie kalm is nie,
nie selfbeheers is nie en dat haar fisiese toestand, emosioneel,
liggaamlik vir my aantoon dat verdere aanranding
wel kan plaasvind en
dat optrede moet plaasvind om dit te verhoed’.
The witness expanded:
‘…
die
toesluit van die persoon van haarself in die kamer het vir my laat –
dit het vir my gesê dat ek gesien het dat sy
is onstabiel en
haarself gaan wegsteek het omdat sy geweet het verdere optrede en
arrestasie gaan plaasvind in die lig van optrede,
haar aanranding en
haar optrede op die toneel, die manier hoe sy optree het en die
woorde wat sy geuiter het wat ek nie spesifiek
kan ongelukkig onthou
nie. Ek kan sê daar was skelwoorde, lelike woord …’.
Vos was, however, unable to provide any details of first plaintiff’s
unruly behaviour prior to her arrest or relating to
her use of foul
language. Similarly his evidence that first plaintiff appeared to be
emotionally unstable and out of control
was generalised and
unsubstantiated. By contrast the first plaintiff’s version was
that for the bulk of the time that Vos
must have spent in the house
she had little to do with him. After initially enquiring as to the
nature of his business there
and unsuccessfully seeking to persuade
him that the dispute could be resolved between her and the
complainant, she retired to
her room until the events leading up the
arrest of her son and herself.
The major factual dispute between the parties related to the role of
the complainant’s car keys, wallet and credit card
in the
incident. On Vos’s evidence their role was limited to the fact
that their removal by first plaintiff was the original
cause of the
dispute between the parties but they played no part in his decision
to arrest first plaintiff. He denied that there
was ever any talk of
an agreement that if first plaintiff handed over these items the
charges against her would be dropped although
he did concede that
there could well have been discussions to this effect. By contrast,
according to first plaintiff the withholding
of the property played
a central role in the interaction between her and the police that
night and, by clear implication, in
Vos’s decision to arrest.
Her evidence was that the leading policeman, who could have only
been Vos, told her that if she
handed over the property that would
be the end of the matter. When she refused to hand over the bank
card and it was taken by
her son that was the trigger for his arrest
followed by hers.
It is necessary to determine this factual dispute. First plaintiff
was not a model witness. She tended to exaggerate those aspects
of
her evidence which cast the police in an unfavourable light and
downplay those which did not reflect well on her case. For
example,
she was reluctant to concede that she had been angry at her husband
when all the evidence suggests, understandably,
that she must have
been livid. Another example was her initial claim that one of her
rings had been cut off her finger by the
police. On closer
questioning it transpired that part of the ring had been very thin
and had broken when a police woman tried
to remove it for the
purpose of fingerprinting. These criticisms aside, much of first
plaintiff’s evidence is uncontested
and confirmed, at least in
its main elements, by that of Vos.
Vos himself was not a satisfactory witness. His recollection of
important aspects of the events was in many instances very vague
if
not non-existent. This did not deter him, however, from making
factual statements that he was unable to substantiate. In that
sense
much of his evidence relating to first plaintiff seemed to comprise
no more than an impression which he could half remember,
an
altogether unpromising foundation for evidence on disputed aspects.
I accept that the incident had taken place some four and
a half
years previously and that no busy policeman would have a
photographic recall thereof. It was, however, an unusual incident
and Vos spent an extended time at first plaintiff’s residence
that night. It was also the subject of an initial complaint
and this
litigation in both of which Vos played a leading role. In the
circumstances I would have expected a much clearer recollection
on
his part. I was unable to avoid the impression that at times Vos’s
poor recollection was simply a convenient bolt hole.
There are several independent indications that the withholding of
the property played an important role in events that night.
Unfortunately much of the original documentation relating to the
criminal case was lost, with only the docket cover remaining
as well
as extracts from cell registers, occurrence books and pocket books.
Significantly, Vos’s own brief pocket book
entry refers to
‘
weerhouding van sy eiendom
’. The pocket book
entry of student constable Ludick, who accompanied Vos throughout,
reads as follows:
‘
On
arrival we talked to (the complainant) the husband in the house
complainant (sic) that his wife Mrs. Julia Reynold won’t
give
his bank/credit cards and two car keys.’
It would appear that by no later than July 2007 first plaintiff had
lodged a complaint against the police arising out of the
incident
which was supported by a lengthy and detailed statement from second
plaintiff. In certain respects that statement does
not
wholeheartedly support first plaintiff’s version in court
which in my view tends to suggest that second plaintiff’s
version was even-handed. In this statement too the withholding of
property assumes a prominent role in the arrests:
‘
They
began questioning my father and it was during this time that my
mother got up and came to see what was happening. She told
the police
that this was a matter between her and my father. My mother then
returned to her room, I got up and followed her. Sometime
later the
male cop came to the room and told my mother that allegedly she had
my father’s car keys and bank cards and that
he would leave as
soon as they were returned. My mother then told him that they were
married in community of property and that
she was unable to return
them as he (my father) might withdraw the money from the “one
account”. He returned to the
lounge and a short while later
came to the room and told my mother that he was going to arrest her.
I got up and followed him to
the lounge and told him that there is no
ways that he will be able to arrest my mother as he has no reason to
do so. I went back
to my mother’s bedroom and she closed the
door. He then came banging on the closed door, telling us that
locking this door
will be resisting arrest and that was going to have
to make a note of this in his report. He then entered the room and
told my
mother to come as she is now under arrest, my mother told him
once again that this is a matter between her and my father and that
he should leave. He (the 100kg police officer) then radioed for
back-up, which arrived remarkably quickly. Yet another police duo
arrived (consisting of a male (approximately 100kg) and female). They
then entered the house and came straight to the bedroom,
demanding
that my mother is under arrest and that she needs to hand over the
card and keys. I then told my mother it is fine and
that she should
rather just give the keys to me and then the police will leave as
they have promised earlier. My mother handed
me the keys, as I placed
them in my pocket (it was as if I was drawing a weapon) the cop
violently grabbed me and through (sic)
me onto the bed and began to
suffocate me by forcing his forearm onto the back of my head. He
continued to handcuff me; it was
at this stage that I heard my mother
scream and I managed to force my head sideways, so as not just to
take breath but see what
was happening to my mother. The remaining
three officers had forced her face down onto the ground.’
Apart from the virtually contemporaneous indications in the pocket
books and the contents of second plaintiff’s statement,
the
cross-examination of first plaintiff lent credence to her evidence
that the withholding of property played a central role
in the
fracas. It was put to her that all four policemen would testify that
when they arrived on the scene they were told she
was withholding
the wallet and keys; further that, when in her bedroom she had
refused to hand over the car keys and card and
instead her son took
possession of them, “
events in the room became quite
heated
” and “
things started going awry
”.
It is difficult to reconcile the putting of these propositions by
defendant’s counsel to first plaintiff with Vos’s
later
evidence that the withholding of the property, although the original
cause of the dispute, thereafter played a minimal
role in the
incident.
A further relevant factor in this regard is the amount of time spent
by Vos and fellow officers at the scene. He testified that
he
arrived at 22h00 and effected the arrest at 00h46. Allowing a
generous amount of time for the summonsing and arrival of
reinforcements, at least two hours must have passed between Vos’s
arrival and his knocking on the first plaintiff’s
door to
announce his decision to arrest her. Again it is difficult to see,
and Vos had difficulty in explaining, how an inspection
of the
scene, an interview with the complainant and the taking of a
statement from him, which incidentally is disputed by first
plaintiff, could have taken so long. If, however, as first plaintiff
testified, there were discussions and negotiations regarding
the
handing over of the disputed property, this would account at least
in part for the considerable time that the police spent
on the
scene.
Given the evidence which I have referred to above, and having regard
to the overall probabilities, I consider that the withholding
of the
complainant’s property as recounted by first plaintiff indeed
played a pivotal role in the events that night. On
the
probabilities, furthermore, although denied on behalf of the
defendant, it is likely that there were discussions, if not
an
agreement, that if first plaintiff restored her husband’s
possessions to him that would be the end of the matter. If
this was
not the case the decision to arrest first plaintiff on the grounds
relied upon by Vos would most likely have been taken
and executed
much earlier that night.
By the time Vos testified he was well aware that any arrest based on
first plaintiff’s refusal to hand over her husband’s
possessions would be highly questionable. This emerged when, in
answer to questions from the court, the witness explained that
in
the case of a dispute over property of that nature, the police’s
role would be limited to explaining to the parties
their rights, in
particular their right to seek an interdict under the
Domestic
Violence Act. Clearly
, Vos’s evidence as to his reasons for
first plaintiff’s arrest must be critically examined with a
view to determining
whether the exercise of his discretion to arrest
was rational.
First plaintiff testified that the initial incident took place much
earlier that evening and that by the time the police arrived
she had
cried herself to sleep. This Vos is unable to dispute. She testified
that upon hearing voices she emerged from her room
and asked the
police, who were busy with the complainant in the lounge, the nature
of their business. She added that she told
them that it was a
private dispute which she and her husband would be able to resolve
but they showed no interest in this. Vos
did not confirm this
evidence but conceded that this exchange may well have taken place.
His evidence as to how first plaintiff
behaved upon their arrival
was both vague and contradictory. Initially he described her as
simply walking around in the immediate
vicinity but playing no
active role. He repeatedly stated that before she locked herself in
her room she had been “vermydend”.
As his evidence
proceeded however Vos ascribed increasingly agitated behaviour to
first plaintiff which was at odds with his
initial evidence. When
asked for details as to how she had been unruly, wild and not able
to control herself, Vos was at a loss
and fell back upon his poor
memory. Nor could he remember the substance of any conversation or
exchange which he had with the
first plaintiff prior to arriving at
the decision to arrest her. He was hesitant and vague when asked to
explain what the cause
of the domestic violence was.
Although Vos conceded that it was important to obtain both sides of
the story in such a situation he seems to have made little
or no
effort to establish from first plaintiff what had led to the
domestic violence, her version of events and whether it was
likely
to continue should the police leave. In this regard he testified
first plaintiff was “vermydend” and had not
approached
him and given her version. However, it appears that Vos focussed his
attention upon the complainant and paid little
attention to first
plaintiff. He testified that he had not asked her whether any
further violence could be expected should the
police leave without
arresting her nor had he warned her that if there was any further
violence she would be arrested. Although
interacting with first
plaintiff along these lines might not have produced answers which
would have resolved the dispute, at
the very least asking these
questions would have enabled Vos to get a better sense of whether
there was a real threat of further
violence in the event of his not
arresting first plaintiff.
There was no suggestion of any dangerous weapon being used by first
plaintiff. The injury which the complainant showed, although
not
trivial, was hardly of a serious nature. The damage to property,
even on Vos’s version of events, was very limited.
As an
experienced police officer Vos must have realised that even were
first plaintiff prosecuted and convicted on the charges
embodied in
the complainant’s statement she was unlikely to have been
sentenced to anything more than a fine or, at worst,
a wholly
suspended sentence of imprisonment.
When Vos’s reasons are examined for concluding that there
would be further violence if he did not arrest first plaintiff
they
do not stand up to scrutiny. These reasons were, in short, the
objects which were pointed out to him by the complainant
as having
been used in the earlier altercation, the fact that first plaintiff
had locked herself in her room and Vos’s
conclusion that she
was not calm or in control of herself. The existence of the objects
which Vos seized, namely, the rake, the
pole and the half brick, did
not in themselves indicate the probability or even the possibility
of further violence and Vos himself
had difficulty in explaining
their relevance to the question of the possibility of future violent
behaviour by first plaintiff.
One has difficulty, furthermore, in understanding why first
plaintiff’s conduct in closing herself off and even locking
herself in her room during the hours that Vos spent in the house,
apparently conversing with and taking a statement from the
complainant, could have signified to him the likelihood of further
violent behaviour on her part. He appeared also to read into
her
conduct in this regard a desire to somehow escape from the police,
again an inference wholly unsupported by this or any other
evidence.
As mentioned earlier, Vos’s evidence that first plaintiff was
unstable and unable to control herself was not
only in contrast with
his initial evidence regarding her conduct but unsubstantiated by
any concrete detail or other independent
evidence. Ultimately it
appeared to be no more than an impression of first plaintiff which
Vos vaguely recalled and which he
was not able to substantiate in
any way.
When one has regard to that part of Vos’s evidence which is
detailed, it appears that first plaintiff only reacted strongly
when
he and other police officials entered her room and arrested her and
her son. Taking all the circumstances of the night’s
events
into account her reaction was hardly surprising. Having regard to
both the inherent quality of their evidence, the substantiating
factors and the probabilities, I accept first plaintiff’s
version of what unfolded in her bedroom above that of Vos’s
where there is any material conflict. In my view Vos minimized the
role of first plaintiff’s refusal to restore the complainant’s
property probably because it undercut the claimed rationale for his
decision to arrest her without a warrant, namely, his view
that
unless he did so there could or would very well be a further assault
or acts of domestic violence by her upon the complainant.
In my view, on the probabilities Vos did not, as he contended, take
an early considered decision to arrest the first plaintiff.
Rather,
this was a decision which he took when the efforts of the police to
resolve the immediate dispute by having first plaintiff
hand back to
the complainant his property, foundered; and the arrests were
triggered when first plaintiff handed some of the
property, be it
the card or the car keys, to her son. Second plaintiff was then
arrested for “obstruction” which
in turn precipitated a
reaction from first plaintiff who was arrested immediately
thereafter. This sequence explains the paucity
of Vos’s
reasons for deciding to arrest first plaintiff, even before entering
her bedroom, the considerable time that he
spent in the house and
his failure to ascribe any significant role to negotiations or
discussions concerning the handing over
of the property.
Accepting first plaintiff’s account of what led to the
arrests, I am unpersuaded that the purpose of first plaintiff’s
arrest was to procure her attendance in court or even a concern that
she might again attack the complainant. It arose, rather,
out of,
and was motivated by first plaintiff’s failure to hand her
husband’s property back to him. Police officials
attending
upon scenes of domestic violence face a difficult and unenviable
task in maintaining law and order and resolving disputes.
No doubt
they are often faced with difficult decisions as to whether to make
an arrest without a warrant or not. What is clear,
however, is that
it is not the function of the police to arrest a party to such a
dispute because such party will not fall in
with a solution to a
proprietary dispute which the police officials feel would be best.
I have accepted first plaintiff’s account of what took place
in her bedroom immediately prior to the arrest. From her account,
it
is clear that the precipitating factor in her arrest was her failure
to cooperate with the police in regard to handing over
the
complainant’s property. It is also clear that had she complied
with the police request no arrest would have followed
and, in all
probability, no charges would have been preferred. Even if the
charges of assault with intent and malicious injury
to property had
been pursued it is most unlikely that they would have been preceded
by her arrest. In this regard it is significant
that no explanation
was forthcoming from the defendant as to why all charges were
dropped against the plaintiffs.
On the proven facts and on an analysis of the probabilities I find
that Vos’s exercise of his discretion was not made in
good
faith and was not based on an intention to bring first plaintiff to
justice. It was effected for some other reason, in all
probability
to put an end to first plaintiff’s resistance to handing over
the complainant’s property, assisted by
her son. As is made
clear in
Sekhoto,
such an arrest is not
bona fide
but
in fraudem legis
because the arrestor has used the power to
arrest for an ulterior purpose. However, even apart from the
question of an ulterior
motive, I consider that, taking all the
circumstances into account, Vos’s decision to arrest the first
plaintiff that night
was irrational. These circumstances include,
but are not limited to, the following:
(i) when Vos arrived at the scene peace had been restored;
(ii) the relatively minimal nature of the injuries and damage to
property which he observed;
the fact that Vos must have, or should have been aware of the
earlier circumstances which gave rise to first plaintiff’s
initial violent conduct and which placed such conduct in context;
Vos’s failure to meaningfully engage with first plaintiff with
a view to determine whether she would engage in any further
violent
conduct or to deter her from doing so;
the absence of any clear indication that first plaintiff would again
resort to violence were she not arrested.
In my view, making full allowance for the exercise by the arresting
officer of his discretion within a reasonable range and the
pitfalls
of using the benefit of hindsight or being an armchair critic, Vos’s
decision to arrest first plaintiff fell outside
the bounds of
rationality.
It is common cause that Vos was acting within the course of scope of
his employment and it follows that the defendant is vicariously
liable for the damages suffered by first plaintiff as a result of
her arrest and subsequent detention for 48 hours. It bears
mentioning that it is wholly unclear, no explanation having been
tendered by the defendant, why first plaintiff could not have
been
released on bail, at the latest, on the morning after her arrest in
terms of
s 59
of the
Criminal Procedure Act. Be
that as it may first
plaintiff was detained throughout her incarceration pursuant to
Vos’s decision to arrest her in the
early hours of 19 July
2006.
For the same reasons as apply to defendant’s reliance on
s
40(1)(q)
of Act 51 of 1977, its alternative defence based on s
40(1)(b) likewise cannot succeed.
To the extent that the defendant’s servants used force in
effecting first plaintiff’s arrest, that amounted to an
assault upon her entitling her to damages.
SECOND PLAINTIFF’S CASE
The defendant’s case was that second
plaintiff was arrested pursuant to the provisions of
s 40(1)(j)
of
the
Criminal Procedure Act for
wilfully obstructing a peace officer
in the execution of his duties, namely, attempting to secure the
arrest of first plaintiff.
I have rejected Vos’s account of
events in the bedroom where it conflicts with that of first
plaintiff. I find further
that second plaintiff was arrested when he
took from first plaintiff either the complainant’s car keys or
the disputed
bank card. That act of taking or receiving such
property cannot, for the reasons set out in relation to first
plaintiff’s
conduct, be construed as obstructing Vos or any
other police officer in the execution of their duties. Such duties
did not extend
to compelling a party to a domestic dispute to hand
over property. In any event, even on Vos’s version of second
plaintiff
jumping on his back and throttling him (which I do not
accept) his arrest of second plaintiff remained unlawful because he
was
not effecting a lawful arrest of first plaintiff. In these
circumstances Vos’s arrest of first plaintiff constituted an
assault upon her which second plaintiff, as her son, was entitled to
resist or attempt to forestall.
8
It follows that the question of whether Vos rationally exercised his
discretion to arrest second defendant does not arise. The
defendant
has failed to prove the second preliminary jurisdictional
requirement for a lawful arrest of second plaintiff, namely,
that he
was wilfully obstructing Vos or some other police officer in the
execution of his/her duties.
I conclude
then that the defendant has
failed to discharge the onus which it bore of proving that second
plaintiff’s arrest and detention
were lawful. Again, no
explanation was proffered by the defendant as to why second
plaintiff could not have been quickly released
on bail by the police
in terms of
s 59
of Act 51 of the
Criminal Procedure Act rather
than
being held for a full 48 hours until his appearance in court. There
is no suggestion that the defendant is not vicariously
liable for
his servants’ delicts. In the circumstances the defendant is
held to be liable in damages to second plaintiff
for his arrest and
detention and, to the extent that force was used in effecting his
arrest, for such assault.
COSTS
The plaintiffs sought their costs including various additional
orders. First amongst these were the costs of the plaintiffs’
applications for condonation in terms of
s 3(4)(c)
of Act 40 of
2002. It appears that the attitude taken by the defendant’s
attorney in that regard was that they should first
be apprised of
the plaintiffs’ reasons for late service of notice of the
intended legal proceedings. This was not done,
however, and the
plaintiffs proceeded directly to court to seek condonation, the
defendant abiding the court’s decision
in those applications.
In the circumstances I see no reason to award these costs to the
plaintiffs.
The plaintiffs also seek the costs of the application for
consolidation of the two actions. The consolidation was entirely
appropriate and the plaintiffs are entitled to these costs. Finally,
both the plaintiffs’ instructing attorney and counsel
were
from Port Elizabeth and they seek various orders covering their
travelling and accommodation expenses on certain trial days.
None of
these expenses would have been incurred had the plaintiffs
instructed local practitioners and no reason was offered as
to why
they chose not to. In the circumstances there is no warrant for the
defendant having to bear any such costs or expenses.
No separate
order is necessary to cover the costs of counsel’s preparation
of heads of argument at any stage. For the rest,
costs must follow
the result and the plaintiffs are entitled to their costs.
ORDER
For these reasons the following order is made:
1. The defendant is held to be liable to first and second plaintiffs
in respect of such damages as they are able to prove arising
out of
their unlawful arrest on or about 18 July 2006 and their subsequent
detention.
2. The plaintiffs are awarded the costs of the actions to date
including the costs of the application for the consolidation of
first
and second plaintiffs’ actions. Such costs shall bear interest
at the rate of 15.5% from 14 days after the date of
taxation to date
of payment.
_____________________
L
J BOZALEK
Judge
of the High Court
1
At
para 22.
2
At
para 30 and 31.
3
At
para 38 – 39.
4
At
para 40.
5
At
para 44.
6
1988
(3) SA 19
(A) at 37B–39F.
7
See
Middleton v Carr
1949 (2) SA 374
(AD) at 385-386.
8
See
Gulyas v Minister of Law and Order
1986 (3) SA 934
(C) at
938I-939B and the authorities there quoted. Also
Bobbert v
Minister of Law and Order
1990 (1) SACR 404
(C) 410h-i.