---

IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 34796/2005

NOT REPORTABLE DATE: 28/1/2008

IN THE MATTER BETWEEN

NNANA DINAH MOHLABENG PLAINTIFF

AND

THE MINISTER OF SAFETY AND SECURITY DEFENDANT

JUDGMENT

SERITI, J

1. INTRODUCTION

This matter came to court by way of action.

1.1 In the particulars of claim, the plaintiff is described as an adult female, employed at the Atteridgeville Clinic, Atteridgeville, Pretoria.

In the particulars of claim, the plaintiff alleges that on 2 March 2005 at approximately 22:20 and at her home, she was unlawfully arrested without a warrant by members of the South African Police Services stationed at Erasmia Police Station on a charge of domestic violence. In the alternative, plaintiff alleged that in the event of the plaintiff having been arrested pursuant to a warrant of arrest issued in terms of the Domestic Violence Act 116 of 1998 ("the Act"), the plaintiff pleads that:

(a) the members of the South African Police Services, at the time of the arrest of the plaintiff, were not in possession of an affidavit wherein it was stated that the plaintiff had contravened any prohibition or order contained in any protection order issued in terms of section 8(4)(a) of the Act;

(b) the members of the South African Police Services, at the time of her arrest, had no reasonable grounds to suspect that the complainant may suffer imminent harm as a result of any alleged breach by her of any protection order issued in terms of section 8(4)(b) read together with section 8(5) of the Act;

(c) the members of the South African Police Services had insufficient grounds for arresting her and were required by the Act to hand her a written notice requiring her to appear in court on a date and time specified in the notice, as required by section 8(4)(c) of the Act;

(d) the members of the South African Police Services when arresting her did not show her any warrant of arrest on the strength of which she was being arrested;

(e) the arrest of the plaintiff was effected at her home, in the presence of members of the public and her two minor children, being a boy of 15 years of age and a girl of 11 years of age.

The particulars of claim further allege that pursuant to her arrest, she was detained, despite having informed the police officers that arrested her of her cardiac problems, she was detained at Erasmia Police Station for few hours. From Erasmia Police Station she was transferred to Atteridgeville holding cells where she was also detained for few hours and thereafter she was taken to Louis Pasteur Hospital where she was hospitalised under police guard until 4 March 2005, whereafter she was given notice in terms of section 72 of Act 51 of 1977 to appear in court.

She was hospitalised until 9 March 2005.

The charge of domestic violence, on which she was arrested and detained as mentioned above was withdrawn by the prosecutor on 14 March 2005.

As a result of her unlawful arrest and detention mentioned above, she suffered contumelia, emotional shock, her dignity was impaired, she was deprived of her liberty, she underwent and she will in future undergo psychological counselling for emotional shock, she underwent medical treatment and incurred legal expenses to secure her release.

The particulars of claim further allege that as a consequence of her arrest and detention as aforesaid she suffered the following damages:

(i) general damages in respect of contumelia, impairment of dignity, emotional shock and deprivation of freedom - R300 000,00;

(ii) past medical expenses - R30 000,00;

(iii) past and future psychological counselling for emotional

shock - R20 000,00;

(iv) legal expenses in connection with her release - R10 000,00

Total R360 000,00

1.2 In its plea, the defendant alleges that the plaintiff was arrested in terms of a warrant of arrest issued on 7 February 2005 by a Pretoria Magistrate. The said warrant was executed in terms of an interim protection order issued on 4 0ctober 2004 and as a consequence of the affidavit by David Mohlabeng dated 2 March 2005.

In the alternative the defendant pleaded that in the event that the court finds that the alleged arrest was effected in the absence of a valid warrant of arrest, the defendant alleged that the arrest was lawful in terms of section 40(1)(q) of the Criminal Procedure Act, 1977, in that the members were of the reasonable suspicion that the plaintiff contravened the interim protection order.

It is further pleaded that at the time of the arrest of the plaintiff, members of the South African Police Services were in possession of an affidavit made by David Mohlabeng in which he complains, inter alia, of verbal abuse and harassment by the plaintiff, who also refuses him access to his motor vehicle, all of which actions are in contravention of the interim protection order.

At the time of arrest of the plaintiff, members of the South African Police Services had sufficient and reasonable grounds to arrest the plaintiff, and she was shown the warrant of arrest at the time of her arrest.

The arrest of the plaintiff was effected in the presence of the two minor children but in the absence of the members of the public.

The defendant denies that the plaintiff informed the members of the South African Police about her cardiac condition.

The defendant admits that the plaintiff was detained at Erasmia and Atteridgeville Police Stations and that at Louis Pasteur Hospital she was placed under guards.

The defendant further admits that on 4 April 2005 the Public Prosecutor decided not to prosecute the plaintiff on a charge of domestic violence.

1.3 Prior to the beginning of the trial, the parties produced a pre-trial minute. In the said pre-trial minute it is recorded that the following facts are common cause:

1. The plaintiff was arrested by the South African Police Service at 22:20 on 2 March 2005 at her home.

2. The plaintiff was arrested on the strength of a warrant of arrest attached to the defendant's plea, pursuant to the plaintiff's husband having made the affidavit attached to the plea.

3. The plaintiff was thereafter detained at the Erasmia Police Station from 22:30 until approximately 23:30 on 2 March 2005, and at the Atteridgeville Police Station from approximately 23:30 on 2 March 2005 until approximately 03:00 on 3 March 2005.

4. The plaintiff was taken to Louis Pasteur Hospital at approximately 03:00 on 3 March 2005 where she was detained under police guard until approximately 14:00 on 4 March 2005.

5. The plaintiff was released from detention in terms of a warning to appear in court issued in terms of section 72 of Act 51 of 1977.

1.4 As a consequence of questions addressed by the plaintiff to the defendant during the pre-trial conference, the defendant stated that:

(a) the plaintiff was shown the warrant of arrest by Inspector Ashraaf Packree;

(b) the plaintiff was handcuffed at the time of her arrest;

(c) plaintiff was detained with other female detainees in the police cells at Atteridgeville Police Station;

(d) plaintiff was detained at Atteridgeville Police Station from approximately 23:30 on 2 March 2005 until 3 March 2005 at approximately 03:00;

(e) the members of the South African Police Services had reasonable grounds to suspect that the plaintiff's husband would suffer imminent harm as a result of the alleged breach of the protection order by the plaintiff.

2. EVIDENCE

2.1 The first witness to testify is the plaintiff.

She testified that she is 50 years of age and a professional nurse employed by Tshwane Municipality. She was married to Mr David Mohlabeng and they divorced on 18 0ctober 2006. Prior to their divorce and on 4 July 2004 her husband moved out of the common home. Her husband who used to misuse liquor and a heavy gambler once threatened to kill her and she took his firearm to the police. 0n a certain day, and at Monte Casino, she found her husband kissing a certain lady. She confronted them and her husband assaulted her. She laid criminal charges against him.

0n 4 July 2004 her husband assaulted her again and he also assaulted their 10 year old daughter. She again laid criminal charges against him and thereafter he left the common home. At that time, her son and daughter were 15 years and 10 years respectively.

0n 17 August 2004 she obtained an interim protection order. In terms of the said interim protection order her husband, Mr David Mohlabeng, was ordered, inter alia, not to assault her. The return date of the said order was 29 November 2004.

The protection order mentioned in the previous paragraph was granted on the strength of the affidavit she made relating to the alleged assault of 4 July 2004. Her daughter also made an affidavit supporting the allegations contained in her mother's affidavit. Copies of the interim protection order and the two affidavits were attached to the bundle of documents prepared by the parties.

The interim protection order was ultimately confirmed at a later stage.

Prior to her husband leaving the common home, he assaulted her twice, once at Monte Casino and once at the common home.

0n 21 September 2004 her husband came home, kicked the doors and banged them. He left and thereafter she telephoned the police station and spoke to Inspector Packree. Inspector Packree said to her that she was lying and if she keeps on phoning, he will arrest her. The following day she reported the incident to her lawyers who then wrote a letter of complaint to the superiors of Inspector Packree.

0n 4 0ctober 2004 her husband obtained an interim protection order against her. In terms of the said order she was prohibited from verbally abusing and harassing the complainant (her husband). She was also ordered to give her husband access to his motor vehicle, a Hyundai Sonata.

The said interim protection order was served at her home.

0n 7 February 2005 a warrant of arrest was issued against her. It was issued apparently as a result of the allegations by her husband that she is still harassing and abusing him verbally.

0n 2 March 2005 her husband went to the Erasmia Police Station and made a statement. In the said statement he complained about the fact that a warrant of arrest was issued and she continues to harass and verbally abuse him in contravention of the interim protection order.

0n the same day at about 22:10 she was at home with her two minor children. She heard a hooter at the gate and a sound of a gate being banged by some object. She peeped through the window and she saw two police motor vehicles with their blue lights on. She saw that the said motor vehicles were marked police motor vehicles. 0ne was a normal police van and the other one was a double cab bakkie. She woke up his 15 years old son, went outside and she saw four police officers in police uniform. 0ne of them, a certain Mr Poo, had a long rifle. Her husband was in his motor vehicle which was parked next to the police motor vehicles.

When she arrived at the gate Mr Poo informed her that they were coming to arrest her in connection with the protection order her husband obtained against her. Inspector Packree informed her that he has a warrant of arrest against her but he did not show her the said warrant of arrest. At the time she discussed with the police officers, they were on their drive-way inside the yard. Her neighbours were outside and watching what was happening. Whilst still outside she was arrested and hand-cuffed from behind. At that time, her son was also outside the house and her daughter was inside the house. After being hand-cuffed, she asked the police and said "what about my children" and there was no response. She then requested them to take her into the house so that she can collect a jersey as she was feeling cold. Inspector Packree then said to her that she should not think that she can run away, and he also mentioned that she once reported him to his superiors.

She was taken into the house to collect her jersey. Her son was crying and her daughter who was asleep woke up and also cried. Her children were asking the police officers not to arrest her.

After collecting her jersey, she was put at the back of the police van and transported to Erasmia Police Station.

At the time of her arrest, the Hyundai Sonata was parked in the yard and there was no mention of the said motor vehicle. When her husband left the common home on 4 July 2004, he left with the Citi Golf motor vehicle, and she together with the children, they were using the Hyundai Sonata.

She denies that she harassed her husband as alleged by him. At the time of her arrest, the police officers did not ask her to comment on her husband's allegations.

0n arrival at Erasmia Police Station she requested the police officers to take her back home so that she can collect her tablets – the said tablets were for her heart condition – at some earlier stage she was hospitalised because of her heart condition.

Certain two police officers took her home to collect her medication and thereafter she was brought back to Erasmia Police Station. She was kept in a room which was next to the charge office. She does not know if the said room was a cell or not, but it was not an office.

At about 23:30 she was taken to Atteridgeville Police Station where she was kept in a cell with two other female detainees. The said cell was dirty and full of water. She was crying from her home up to Atteridgeville Police Station. Her medical condition deteriorated and she told the two female detainees that she was sick. They banged the door of the cell and after twenty minutes two female and two male police officers came to enquire what the problem was. 0ne of the male police officers was a certain Mr Hlongwane. She explained to them her medical condition and that she was sick. Mr Hlongwane said to her that they are not her husband and why did she not inform them about her medical condition and that the police station was not a hospital. They refused to assist her and they left.

After about fifty minutes, a policeman and a police woman came to their cell. She explained to them her problem. They took her to the charge office and at about 03:00 she was transported to Pretoria Heart Hospital and thereafter she was taken to Louis Pasteur Hospital where she was hospitalised under police guard.

Her first police guards at the hospital were two males. She was wearing a hospital gown which is open at the back. The guards were sitting next to her and when she goes to the toilet her underwear were exposed to the said police guards. She was hurt by that.

0n 4 March 2005 at about 14:00 whilst still at hospital, she was given a written "warning to appear in court" on 14 March 2005. She remained at the hospital until 9 March 2005.

When she was taken to the hospital she could not breathe properly and she was having pain on the left breast area.

If she was given at her home a warning to appear at court, she would have appeared at court as requested.

During her stay at the hospital she also consulted Dr Mokhuane, a psychiatrist, and Professor Mokhuane a clinical psychologist as she could not sleep, she had headaches and she was getting easily scared. She is still consulting with Professor Mokhuane regularly as she has not yet overcome her problems, eg lack of proper sleep. She is still scared of a police van.

At the hospital she consulted with Professor Mokhuane, Dr Mokhuane and Dr Kankawaza. The latter doctor was treating her for her heart condition.

She further testified that on 22 March 2005 the protection order her husband obtained against her was set aside. 0n 3 March 2005 this court granted, in her favour, pendente lite an order, inter alia, granting her the right to use the Hyundai Sonata motor vehicle.

0n 4 April 2005 the domestic violence charge preferred against her was withdrawn.

The police officer who took a statement from her husband, which statement was the basis of the domestic violence charge against her, is Mr William Kgokong who was well-known to her husband. Mr Kgokong was the investigating officer in the said case.

After her husband assaulted her as mentioned earlier, Captain Chauke instructed Mr William Kgokong to arrest her husband, but Mr Kgokong failed to do so.

0n 17 August 2004 he saw Mr Kgokong and her husband at their home. They went into the bedroom and they passed her in the kitchen. When they came out of the bedroom she saw her husband giving his gun holster to Mr Kgokong.

Under cross-examination she testified that she started having marital problems with her husband from the year 2000.

0n 13 August 2004 her husband was arrested for assaulting her and their daughter on 4 July 2004.

Her heart condition was diagnosed on or about 1 May 2001. She was admitted at Milpark Hospital for a week and she was given treatment which solved her problems. Before her arrest she did not go back to hospital although she was given some tablets which she still had at home.

During the years 2003 and 2004 her husband assaulted her but that did not affect her to the extent that she could be hospitalised.

From 2001 until her arrest her heart condition did not bother her. The tablets that she had at home, she received them at the time she was hospitalised. The said tablets had a long life span and at the time of her arrest they had not yet expired.

Whilst at Erasmia Police Station she told police officers that she need her medication and she was taken back home to collect her medication.

Her husband left the common home eight months prior to her arrest and he came to their home with the police officers when they came to arrest her.

Plaintiff closed her case.

2.2 The first witness to testify on behalf of the defendant is Captain Ashraaf Packree.

He testified that during March 2005 he was an Inspector and stationed at Erasmia Police Station.

0n 2 March 2005 he went on duty at about 19:00. He was the Relief Commander on duty. 0n his arrival at work he found Mr David Mohlabeng in the charge office. Mr Mohlabeng complained to him that he has opened a case and handed in a warrant of arrest and the latter has not been executed. The case was being investigated by Inspector Kgokong but the latter was not present. He noticed that the relevant docket was in the charge office. He perused the docket and in the docket he found a warrant of arrest, a protection order and a statement made under oath.

The interim protection order which is dated 4 0ctober 2004 with the return date being 22 March 2005 reads partly as follows:

"3.1 The court orders that:

3.1.2 An interim protection order is granted and the respondent is ordered-

3.1.2.1 not to commit the following act(s) of domestic violence:

Not verbally abusing and harassing the complainant.

To give the complainant access to his car Hyundai Sonata."

The statement by Mr David Mohlabeng is dated 2 March 2005 and it reads partly as follows:

"0n the seventh of February 2005, I went to court with my interim protection order to complain about my wife who keeps harassing me, locking out and she went as far as changing the house lock so I cannot come into the house.

She then keep calling me on my cell phone, calling names such as a dog that sleeps around with bitches, sluts and prostitutes. The court then produced a warrant of my wife's arrest which was delivered to Erasmia Police Station by myself but to date no arrest was made and I still cannot gain access into the house. … Another problem is I still can't get access to my vehicle Hyundai Sonata as the court ordered.

I'm verbally abused regularly, harassed and no access to vehicle and the house."

The warrant of arrest which is dated 7 February 2005 is headed as follows:

"Warrant of Arrest

Section 8(1)(a) of the Domestic Violence Act, 1998 (Act 116 of 1998)"

and it reads partly as follows:

"Whereas the applicant has stated in the affidavit attached that the respondent has breached (a) condition(s) of the protection order; Therefore you are hereby authorised and ordered to forthwith arrest the respondent in terms of the provisions of the Domestic Violence Act, 1998."

After perusing the docket, as the senior on duty he decided to accompany Mr Mohlabeng to his home to execute the warrant of arrest. He did not believe that he has any discretion but to execute the warrant of arrest.

When he went to the plaintiff's residential home he was with Mr Mohlabeng and Constable Badenhorst. The latter was driving the police bakkie they were travelling in. The said bakkie was a marked police motor vehicle with blue lights.

0n arrival at the plaintiff's residence, they found the gates locked. He shouted the plaintiff's name and somebody peeped through the window after shifting the curtains. Plaintiff then shouted back and said she is coming. A short while later she came to unlock the gate. Before unlocking the gate she asked where is David and he mentioned that he is across the road. Neither Constable Badenhorst nor him were carrying any rifle.

When plaintiff came to the gate he explained to her that he needs to talk to her. At that time he did not see any of the plaintiff's neighbours. They went into the house with her. In the kitchen he explained to her that a domestic violence charge was pending against her and that there was a warrant of arrest issued against her. Plaintiff demanded to see the docket which he had with him. He gave the plaintiff the docket, she looked at it and saw the documents inside the docket. She then said that this is "shit, you are David's friends and you are helping David to get rid of me".

When they entered the house, he did not see the plaintiff's children.

He requested the plaintiff to accompany them and she started questioning how the warrant of arrest was obtained. He explained to her that it was issued by a Magistrate. She said that she cannot accompany them as her children would remain alone and he explained to her that her husband is outside and he will remain at the house and look after the children. She then grabbed a kettle with boiling water and attempted to pour him with boiling water. He took the kettle from her and she then screamed for her children – she was very hysterical – a boy and girl emerged and she told them that look at what your father is doing to me. Her daughter started to cry and he called Mr Mohlabeng to come and look after the children.

Plaintiff refused to accompany them and he told plaintiff that he is going to handcuff her. When he tried to handcuff her, she said she cannot bend her arm because of a painful shoulder, and he handcuffed her in the front. They went into their bakkie (double cab) and plaintiff sat at the back seat.

When he opened the motor vehicle door for the plaintiff, he saw a police van standing at one of the nearby houses where there was a lot of noise. Police received a complaint about the noise coming from the said house.

They drove to the police station. 0n the way, the plaintiff was crying and complaining that he (the witness) is helping her husband to make a fool of her.

At Erasmia Police Station she was detained. After he had completed the necessary documentation, plaintiff requested him to take her back home to collect her medication and he complied. At her home her husband gave them her medication and they went back to Erasmia Police Station with her. At the police station she was kept in a temporary waiting area which has chairs and it is next to the charge office.

Plaintiff was later transferred to Atteridgeville Police Station where she was detained in a cell. Later he went to collect her and took her to Pretoria Heart Hospital. When he came to collect her from Atteridgeville Police Station, he found her in the charge office and she was holding her chest.

At Pretoria Heart Hospital she was stabilised and they told her that they cannot admit her as she does not have her medical aid card with her. Plaintiff requested them to check their records as she was at the hospital a week before that day. Staff members checked their records and thereafter they informed the plaintiff that they cannot pick up her name on their computer. Plaintiff requested him to take her to Louis Pasteur Hospital where she was admitted. The hospital staff said that her medical aid card must be brought to the hospital as soon as possible.

Plaintiff requested him to go and collect her medical aid card at her home. He went to her home, found her husband who gave him her medical aid card and he took same to the plaintiff at the hospital.

0n 4 March 2005 the plaintiff was released from police custody.

The High Court order dated 3 March 2005 which granted the plaintiff the use of the Hyundai Sonata motor vehicle was never shown to him.

He further testified that Inspectors Poo and Kgokong are unable to come and testify because of ill-health.

Under cross-examination he testified that after the plaintiff had read the contents of the docket at her home, he did not ask for her comments as the reason for visiting the plaintiff was simply to arrest her.

When plaintiff attempted to pour him with boiling water, he held her with her arm, water spilled on the floor and on his boots. Assaulting a police officer is a serious crime, but he did not prefer any charges against the plaintiff as the boiling water did not injure him. At that time, in the kitchen, Constable Badenhorst was present and they were both armed.

0n the night he arrested the plaintiff, he made a written statement which reads as follows:

"… I am the investigating officer in this case.

That on 2005/03/02 at 23:30 I proceeded to 486 Aletta Street … with the complainant. The complainant pointed out the suspect Mmama Dinah Mohlabeng to me and I placed her under arrest. She became uncooperative and woke up her children. She also stated she will not come with unless her children accompany them. Ms Mohlabeng was then cuffed and transported to Erasmia SAPS and detained."

He further testified that on the day he arrested the plaintiff, her husband was standing outside his motor vehicle and he (the plaintiff's husband) pointed out the suspect to him and said there she is. When the plaintiff's husband said so, he came out of his motor vehicle and he (the witness) instructed him (the plaintiff's husband) to get back into his motor vehicle.

He further testified that it is possible that when plaintiff's husband pointed out the plaintiff, she saw him, although plaintiff asked him (the witness) where her husband was.

From the year 1999 they received various complaints from both the plaintiff and her husband.

In the year 2005 he was an Inspector with seventeen years experience in the police force and he was aware of the provisions of the Domestic Violence Act. Prior to the year 2005 he dealt with many domestic violence cases.

If a person breaches the conditions of a protection order it is a serious offence and that person must be arrested and brought before court.

When he went to arrest the plaintiff he did not go there to investigate but to arrest her. He was bound to arrest her as ordered by the warrant of arrest.

As he was a non-commissioned officer, he could not release the plaintiff on warning or bail. A commissioned officer came to work only the following morning. He informed the said commissioned officer about the case and the latter informed him that he will take the case up with the investigating officer.

He further testified that the warning to appear in court dated 4 March 2005 which was given to the plaintiff warning the plaintiff to appear in court on 14 March 2005 was signed by Inspector Kgokong.

After the arrest of the plaintiff he spoke to the station commander and the investigating officer. He did not recommend to anyone of them that the plaintiff should be released on bail or warning as he did not feel that that was necessary.

When he arrested the plaintiff at her home the Hyundai Sonata motor vehicle was parked in the yard and there was no mention of the said motor vehicle by anybody.

At some stage prior to the arrest of the plaintiff, the plaintiff caused a complaint against him to be lodged with his Commanding 0fficer. The complaint related to the telephone call he once received from the plaintiff when she falsely alleged that her husband is banging the door at her home. He did not have a grudge against the plaintiff.

It is customary to have a rifle when they go out but on the day they went to arrest the plaintiff they did not have it as they were just going to arrest the plaintiff and come back to the police station.

Two to three nights prior to the arrest of the plaintiff, when he went to the plaintiff's home with Inspector Poo, Inspector Poo had a rifle and he believes that plaintiff is confusing the days when she alleges that they had a rifle when they came to arrest her. He telephoned Inspector Poo last night, and the latter reminded him about the said incident.

He heard for the first time about the plaintiff's heart condition when they arrived at the hospital.

Under re-examination he testified that at the time of the arrest of the plaintiff he was not familiar with the entire Domestic Violence Act, but he now understands it better. He became familiar with the said Act when he consulted with their legal team.

The defence closed its case.

3. FINDINGS

3.1 Merits

It is not in dispute that the plaintiff and her husband had marital problems prior to the arrest of the plaintiff.

Plaintiff was assaulted, at least on two occasions, by her husband and she laid criminal charges against him. 0n one of the occasions her husband assaulted her and also assaulted their minor daughter.

0n 17 August 2004, after he assaulted her and their minor daughter, plaintiff obtained an interim protection order against her husband which order was later confirmed.

0n 21 September 2004 her husband came to the common home, banged the doors and she telephoned the police station and spoke to Inspector Packree. There was an interaction between her and Inspector Packree which led to the plaintiff causing a complaint against Inspector Packree to be directed to the latter's superior.

0n 4 0ctober 2004 her husband obtained an interim protection order against her, and on 7 February 2005 a warrant for her arrest was issued, as her husband alleged that she breached the conditions of the interim protection order.

0n 22 March 2005 the interim protection order issued against her was set aside and on 4 April 2005 the domestic violence charge preferred against her was withdrawn.

Inspector Kgokong who was the investigating officer of the domestic violence charge preferred against her, was well known to her husband. They both came from Atteridgeville. 0n a certain day, at the common home, her husband gave Inspector Kgokong a firearm holster. The said Inspector failed to arrest her husband for assaulting her and the minor daughter despite the fact that Captain Chauke had instructed him to effect the arrest of her husband.

There are certain material differences between the evidence of the plaintiff and Captain Packree.

The plaintiff alleges that when she was arrested, the neighbours and her children witnessed that incident. Captain Packree disputes that there were any neighbours who witnessed the arrest of plaintiff.

The plaintiff was staying at home with her fifteen years old son and ten years old daughter. The probabilities are that if there is a bang at the gate, she will wake up her son for possible assistance. Furthermore, once there is a bang at the gate and somebody calling the name of the plaintiff, the neighbours will peep through their windows or come out of their houses to see what is happening.

In my view, the version of the plaintiff accords with probabilities and the court can rely on it. The same cannot be said about the evidence of Captain Packree in so far as it contradicts the version of the plaintiff.

In his evidence Captain Packree contradicted the statement made by him shortly after he arrested the plaintiff. In the said statement he stated inter alia that he is the investigating officer, and in his evidence before court he testified that Inspector Kgokong was the investigating officer. In the said statement he further wrote that the plaintiff was arrested by him after the complainant pointed her out, which fact is contradicted by his evidence in court.

The other difficulty I have with the defendant's version relating to the arrest of the plaintiff is that at the relevant time Captain Packree was with Constable Badenhorst but for an unexplained reason Constable Badenhorst was not called as a witness.

Section 8 of the Domestic Violence Act 116 of 1998 reads partly as follows:

"Warrant of arrest upon issuing of protection order-

(1) Whenever a court issues a protection order, the court must make an order-

(a) authorising the issue of a warrant for the arrest of the respondent, in the prescribed form; and

(b) suspending the execution of such warrant subject to compliance with any prohibition, condition, obligation or order imposed in terms of section 7.

…

4(a) A complainant may hand the warrant of arrest together with an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any provision, condition, obligation or order contained in a protection order, to any member of the South African Police Service.

(b) If it appears to the member concerned that, subject to subsection (5), there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent, the member must forthwith arrest the respondent for allegedly committing the offence referred to in section 17(a).

(c) If the member concerned is of the opinion that there are insufficient grounds for arresting the respondent in terms of paragraph (b), he or she must forthwith hand a written notice to the respondent which-

…

(ii) calls upon the respondent to appear before a court, and on the date and at the time, specified in the notice, on a charge of committing the offence referred to in section 17(a);"

In 0mar v Government of RSA [2005] ZACC 17; 2006 2 SA 289 (CC) at para 48 p305, while dealing with the abovementioned section 8(4) the court said the following:

"… In terms of s 8(4) police officials are now obliged to accept the contents of the affidavit and to act when it appears that reasonable grounds exist for a suspicion of imminent harm to the complainant. The requirement of an appearance of reasonable grounds for a suspicion is no less objective a test than (for example) the required existence of a reasonable suspicion."

The defendant's counsel submitted that the warrant of arrest in this case is defective as it does not comply with the provisions of section 8 of the Domestic Violence Act supra. He further submitted that the said warrant gave the police officers no discretion at all, but ordered them to arrest the plaintiff.

Captain Packree testified that he went to the plaintiff's home to arrest her as ordered by the warrant of arrest. He did not believe that he had any discretion but to arrest the plaintiff.

The above evidence runs contrary to the provisions of section 8(4)(b) quoted above. Captain Packree did not even consider whether or not there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the breach of conditions of the interim protection order by the plaintiff.

In fact, the facts of this case clearly demonstrate that there were no possibilities at all of complainant suffering any harm. In terms of the evidence led, the complainant is the one who in the past assaulted the plaintiff on at least two occasions. 0n one of those occasions, he also assaulted their minor daughter. Captain Packree was also aware of the various complaints the police received from the plaintiff and her husband from 1999.

Captain Packree under cross-examination testified that in the year 2005 he had seventeen years experience in the police force and he was aware of the provisions of the Domestic Violence Act. Prior to the year 2005 he had dealt with many domestic violence cases.

In re-examination he testified that prior to his consultation with their legal team in preparation of the hearing in this matter, he was not familiar with the entire provisions of the Domestic Violence Act, but after the said consultation he understands it better.

The probabilities are that at the time of the arrest of the plaintiff Captain Packree was aware of the provisions of the Domestic Violence Act supra, particularly section 8 thereof, but he maliciously decided to detain the plaintiff. I have reached this conclusion because of the following factors:

(1) Captain Packree in the statement that he made shortly after the arrest of the plaintiff stated that he is the investigating officer, when in actual fact Inspector Kgokong was the investigating officer.

(2) He was aware of the various complaints and counter-complaints between the plaintiff and her husband, but he decided to arrest the plaintiff without any further investigation.

(3) He testified that his understanding of the contents of the warrant of arrest was that he had no discretion at all but to arrest the plaintiff, despite the fact that it is clearly stated that the warrant is issued in terms of section 8(1)(a) of the Domestic Violence Act 116 of 1998, and he had in the past dealt with many cases of domestic violence and he was aware of the provisions thereof.

(4) 0n a previous occasion he spoke to the plaintiff over the telephone when plaintiff attempted to report that her husband is a nuisance at home and as a result of the altercation over the phone between plaintiff and Captain Packree, plaintiff caused a complaint against Captain Packree to be lodged with the latter's seniors.

(5) During the telephone conversation mentioned in the previous paragraph Captain Packree threatened to arrest the plaintiff.

(6) Captain Packree testified that as he was a non-commissioned officer, he could not release the plaintiff on bail or warning. Strange enough, he further testified that when he spoke to the Station Commander and the investigating officer he did not recommend to anyone of them that the plaintiff should be released on bail or warning as he did not feel that that was necessary.

(7) 0ne would have expected Captain Packree to have spoken about the release of plaintiff on warning with the Station Commander and/or investigating officer much earlier if he did not have a desire to detain the plaintiff contrary to the provisions of the Domestic Violence Act provisions which he was aware of. It is inconceivable that Captain Packree, who had knowledge of the Domestic Violence Act, and who read the interim protection order and the warrant of arrest (which clearly stated that it was issued in terms of section 8(1)(a) of the Domestic Violence Act, 1998) he could have been under the impression that he had no discretion whatsoever but to arrest the plaintiff.

The distinction that the defendant's counsel attempts to draw between the warrant on which the plaintiff was arrested and the pro forma warrant of arrest in Form 8 of the Regulations is untenable. Although the warrant of arrest of the plaintiff did not include the phrase "if there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent" the said warrant states that the respondent (our current plaintiff) should be arrested "in terms of the provisions of the Domestic Violence Act, 1998". The latter term or statement clearly implies that section 8(4)(b) of the said Act should apply to the question of the arrest of the plaintiff. The said provisions cannot simply be ignored. The pro forma warrant of arrest in Form 8 simply re states the provisions of section 8(4)(b) of the Domestic Violence Act supra.

3.2.1 Quantum

The court has a wide discretion to determine damages in cases of this nature. In doing so, the court must be fair to all the parties.

Court must take into account all the factors of the case and take into account other decided cases.

The plaintiff is a 50 years old female professional nurse, was arrested in the presence of her minor children aged 15 years and 10 years respectively. Her neighbours witnessed her arrest and she was hand-cuffed. Her children were crying when she was arrested.

She was detained at Erasmia Police Station in an office for about an hour. Thereafter she was taken to Atteridgeville Police Station where she was detained in a cell with other two female inmates for about three and a half hours. She was later taken to hospital where she was hospitalised under police guard until at 14:00 on 4 March 2005. She was actually detained from 22:00 Wednesday night up to 14:00 Friday.

She was hand-cuffed from behind in full view of her children and neighbours. At hospital she was under police guard which fact was noticed by other professional nurses, hospital staff and possibly other members of the public.

After her arrest, her cardiac condition deteriorated and as a result she was hospitalised from the morning of 3 March 2005 up to 9 March 2005.

In his heads of argument the plaintiff's counsel referred the court to the following cases:

- Seria v Minister of Safety and Security and 0thers 2005 5 SA 130 CPD. In this case the court found that there was no malice on the part of the defendants.

Plaintiff an architect was arrested on 28 September 2002 and detained until 29 September 2002.

Court awarded plaintiff damages of R50 000,00 which in today's terms according to the Quantum Year Book 2007 by R J Kock is R56 922,00.

- Louw and Another v Minister of Safety and Security and 0thers 2006(2) SACR 178 (T).

The court awarded R75 000,00 to plaintiffs who were detained for twenty hours in the police cells.

- Minister of Safety and Security v Seymour 2006 6 SA 320 (SCA).

The plaintiff was detained in police cells for about twenty four hours and in the hospital for a further four days.

Plaintiff was awarded on appeal an amount of R90 000,00.

In my view, after taking into account all the relevant factors an award of R85 000,00 would be a fair compensation for general damages.

3.2.2 Special damages

It is common cause between the parties that the plaintiff was hospitalised at Louis Pasteur Hospital from the morning of 3 March 2005 up to 9 March 2005. Her hospitalisation was as a result of her deteriorated heart condition which was occasioned by her unlawful arrest.

During her evidence the plaintiff handed to the court a computer print out indicating that her total costs at Louis Pasteur Hospital came to R9 881,93.

The defendant's counsel submitted that the computer print-out documents submitted by the plaintiff as proof of her special damages are inadmissible as plaintiff failed to authenticate the said documents as required by section 2 of the Computer Evidence Act 57 of 1983.

Section 92 of the Electronic Communications and Transactions Act 25 of 2002 repealed the Computer Evidence Act 52 of 1983.

Section 15(4) of the Electronic Communications and Transactions Act supra requires a data message or a copy or print-out or an extract from such data message be certified to be correct by an officer in the service of the producer of such message or extract or print out prior to same being admissible as evidence on its mere production.

The above requirement has not been complied with and consequently the plaintiff has failed to prove her special damages.

3.2.3 Costs

An award of costs falls within the discretion of the trial court.

The facts of this case are complex and in my view the plaintiff was entitled to institute action in the High Court.

The award I made herein, though within the jurisdiction of the magistrate's court, is not such that it could be said that the plaintiff ought to have known that she will not succeed to be awarded damages above the magistrate's court jurisdiction.

My view is that the plaintiff is entitled to the High Court's costs.

4. ORDER

The court therefore makes the following order:

4.1 The defendant must pay the plaintiff an amount of R85 000,00.

4.2 The defendant must pay the costs of the plaintiff on a party and party scale, and on the High Court tariff.

W L SERITI

JUDGE OF THE HIGH COURT

34796-2005

HEARD ON: 30 NOVEMBER 2007

FOR THE PLAINTIFF: T W G BESTER

INSTRUCTED BY: SHAPIRO & SHAPIRO INC

FOR THE DEFENDANT: J A MOTEPE

INSTRUCTED BY: STATE ATTORNEY

---