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Kidson v Minister of Police (76732/2010) [2015] ZAGPPHC 812 (24 November 2015)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE GAUTENG DIVISION HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)


Case Number: 76732/2010

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

24/11/2015

In the matter between:


H P KIDSON                                                                                                        PLAINTIFF

AND

MINISTER OF POLICE                                                                                    DEFENDANT


JUDGMENT


MOLEFE J

[1] This is a delictual claim for damages. The plaintiff claims R190 000 from the defendant (the Minister) following his arrest by members of the South African Police Service (SAPS) on 30 April 2010. The arrest was without a warrant, and therefore prima facie unlawful. The onus lies with the defendant to justify the lawfulness of the arrest[1].  The claim is based on the principles of vicarious liability of the defendant for the actions of the police officers acting in the cause and scope of their employment.

[2] The following facts are common cause between the parties:

2.1 The plaintiff was arrested at his residence situated at […], Pretoria on Friday, 30 April 2010, at approximately 16h30 for allegedly contravening an interim protection order that was issued against him;

2.2 The plaintiff was thereafter detained at Hercules Police Station, Pretoria until Monday 3 May 2010 at approximately 13H00 when he was released at the Magistrates Court, Pretoria;

2.3 An interim protection order was issued against the plaintiff in favour of his ex-wife, Ms D K (“the complainant”) on 26 April 2010, in Pretoria Magistrate’s Court, for the plaintiff to inter alia, not to threaten, assault, intimidate or verbal affliction on the complainant or their children;

2.4 In accordance with the Domestic Violence Act, Act No 116 of 1998 (“the Act”) and the standard form of such interim protection orders, as is contemplated in paragraph 4.2 thereof, a warrant for the arrest of the plaintiff was not granted / issued;

2.5 At all material times, the members of the SAPS involved in the arrest and detention of the plaintiff, acted within the course and scope of their employment.

[3] The defendant admits the arrest and detention of the plaintiff but denies that the arrest and detention were unlawful.  The defendant contended in its plea that the arrest was justified in terms of section 40 (1) (q) of the Criminal Procedure Act, Act 51 of 1977.

Issues in dispute

i) Was the arrest and detention of the plaintiff lawful or unlawful?

ii) Whether no warrant of arrest was issued and that the members of the SAPS acted in terms of section 40 (1) (q) of the Criminal Procedure Act, Act 51 of 1977;

iii) Whether the interim protection order was served on the plaintiff before his arrest and whether the plaintiff contravened the interim protection order;

iv) Whether the plaintiff’s alleged breached of the interim protection order resulted in imminent harm to the claimant;

v) The quantum of the plaintiff’s damages.

[4] The plaintiff’s version of the events leading to his arrest on Friday 30 April 2010 was that he found out that his in-laws were attempting to sell his mother’s house and were in the process of moving to an unknown destination with his mother.  He was upset about this and he contacted his sister Ms P M M who advised him to go and fetch his personal belongings from his home and it was agreed that he would stay with his sister at her home for a few days to avoid confrontation with the complainant.  The plaintiff and Ms M drove in two vehicles to his home together with Ms M’s sons.

When they arrived at the plaintiff’s residence, they started packing his clothes.  The complainant who was still married to the plaintiff at that time was present at their residence.  When plaintiff took some of his clothes to his vehicle, he was approached by two police officers.  They showed him the front page of the interim protection order and informed him that he failed to comply with a domestic violence order.   Despite the fact that plaintiff informed them that he was not aware of any protection order, against him, one of the officers handcuffed him and he was arrested.  He was taken to Hercules Police Station in a police van where he was detained.

Upon arrival at the police station, he was notified of his constitutional rights and was detained in a police cell where he was locked up with other inmates.  He had a small thin mattress to sleep on, with no blankets.  He did not get any food or beverages until on Saturday morning.  There was a foul stench in the cells.

On Saturday morning, he consulted with Warrant Officer Smit who filled in an affidavit form which he had to sign.  He requested that he should get a legal representative but W/O Smit informed him that it would not help as he had to wait for Monday to appear in court.  Ms M visited him for short periods of time on Saturday and Sunday.

On Monday 3 May 2010, he was taken to Pretoria Central Police Station and was released on the same day at approximately 13h00.  He was informed that the complainant had withdrawn the complaint against him.  Plaintiff further testified that he was only served with the interim protection order on 18 June 2010.

[5] Ms P M M, plaintiff’s sister corroborated plaintiff’s testimony about the arrest on 30 April 2010.  She confirmed that whilst they were packing plaintiff’s clothes, he did not talk to the complainant, who was screaming and shouting at the plaintiff.  She testified that she informed the police officers that the plaintiff had no knowledge of the interim protection order and that there was no danger and/or imminent danger to anyone prior to the arrest.

Under cross-examination, Ms M denied that the police officers arrived with the complainant at the plaintiff’s house but that the complainant was at home when the officers arrived.

[6] I consider primarily, the evidence presented on behalf of the Minister as the onus to establish the lawfulness of the arrest is on him.  Constable Michael Khoza testified that on 30 April 2010, after 16H30, the complainant came to Hercules Police Station and opened a case of assault against the plaintiff.  The complainant showed him the interim protection order that she obtained against the plaintiff on 26 April 2010.  Constable Khoza testified that he could not establish whether the order had been served on the plaintiff or not.  He took a statement from the complainant and he, together with Constable Khumalo, followed the complainant in the police vehicle to her residence to arrest the plaintiff.

Constable Khoza testified that when they approached the plaintiff at his home, he was not co-operative and was aggressive.  He tried to show him the interim protection order but he was not interested.  He then read him his constitutional rights and arrested him.  Constable Khoza further testified that they arrested plaintiff without a warrant as section 40 of the Criminal Procedure Act allowed him to arrest without a warrant if there was suspicion of abuse or assault.  He further testified that although there were no visible injuries on the complainant he could see that she was in danger.

Under cross-examination, Constable Khoza confirmed that he did not follow the correct procedure for domestic violence by writing the complaint in the incident book.  He was referred to the contradictions in his statement which was commissioned at 16h45 after the arrest.  In his statement, he testified that the complainant gave him the protection order when he arrived at her residence to arrest the plaintiff and not at the police station.

He further confirmed under cross-examination that there was no imminent harm or danger at the scene of incident.

[7] Detective Warrant Officer Stephanus Smit testified that he was the investigating officer in the plaintiff’s case.  He confirmed that he interviewed the plaintiff on Saturday morning at the police station and the plaintiff signed the affidavit in which he indicated that he did not need legal representative.  The affidavit was later commissioned by Constable Khoza in the plaintiff’s absence. 

Under cross-examination he testified that he did not release plaintiff on Saturday because plaintiff did not give him any version but that even if the plaintiff had denied the assault he would still not release him.

[8] Section 40 (1) (q) of the Criminal Procedure Act, Act 51 of 1977 provides that:

(i) A peace officer may without a warrant arrest any person –

(q) who is reasonably suspected of having committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element”.

The definition section of the Domestic Violence Act defines domestic violence as “where such conduct harms, or may cause eminent harm to the safety, health or well-being of the complainant”.

[9] Constable Khoza as an arresting officer, testified that there was no imminent harm and/or danger to the complainant and could not have reasonably suspected at the scene of the incident that the plaintiff has committed an offence that has an element of violence against the complainant.

It is common cause that when the police officers arrived at the complainant’s residence, plaintiff was busy loading his personal belongings in his vehicle.  It was Constable Khoza’s version that due to the plaintiff being unco-operative and aggressive he was arrested.  In my view, had a reasonable police officer in their position have investigated the information at their disposal further and critically analysed it, they would not have arrested the plaintiff.  They could have called upon the plaintiff to appear before court on a specified date and time.

[10] In Seria v Minister of Safety and Security and Others 2005 (5) 130 C it was stated that “imminent harm” is:

It is the danger of harm of a certain degree of immediacy that activates the protection - - - that is to a harm which is impending threatingly ready to overtake or coming on shortly.”

I am satisfied that the police officer could not have acted in accordance with section 40 (1) (q) of the Criminal Procedure Act, as there was no imminent harm and no act of domestic violence were contravened by the plaintiff at the scene of incident.

[11] Section 3 of the Domestic Violence Act, Act No 116 of 1998 states the following:

3. Arrest by peace officer without warrant

A peace officer may without a warrant arrest any respondent at the scene of an incident of domestic violence whom he or she reasonably suspects of having committed an offence containing an element of violence against the complainant”.

Service of an interim protection order

[12] An interim protection order must in terms of the provisions of section 5 (3) (a) of the Act be served on the Respondent in the prescribed manner.  In terms of section 5 (3) (b) of the Act, a copy of the application, the record of any additional evidence considered by the Court and the interim protection order must (own emphasis) be served on the Respondent.

[13] In terms of sub-sections 5 (3); (6) and (13) of the Act, as well as Regulation 15, the interim protection order must be served by the Clerk of the Court, the Sheriff or a Peace Officer according to the Rules of the Magistrate’s Court.

An interim protection order shall in terms of section 5 (6) of the Act, have no force or effect until it has been served on the Respondent.

[14] Plaintiff’s counsel[2] submitted that in casu, the interim protection order was not served on the plaintiff in the prescribed manner and did not have force and effect.  Counsel in this regard relied on Omar v Government of the Republic of South Africa & Others [2005] ZACC 17; 2006 (2) SA 289 (CC) at 302, par 40, wherein it was held that:

An order that has not come into force and has no effect cannot be contravened”.

[15] In Seria (supra) at 144 it was held that:

In keeping with the principles that a person is entitled to notice of legal proceedings against him or her, the Act ensures that the interim protection order which commences legal proceedings is not valid until notice thereof is given by its service upon the respondent”.

[16] In casu the interim protection order was not served on the plaintiff in the prescribed manner and did not therefore have any effect or force.  I am therefore satisfied that prior to plaintiff’s arrest, he was not served with the interim protection order and did not therefore contravene same.

Enforcement of an interim protection order

[17] Section 5 (7) of the Act provides that the original warrant of arrest must be served by the Clerk of the Court on the complainant upon service or upon receipt of a return of service of an interim protection order.

[18] Section 8 (4) (a) of the Act reads as follows:

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

b) If it appears to the member concerned that, subject to 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 para (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 the time specified in the notice, on a charge of committing the offence referred to in Section 17 (a)”.

[19] In casu, the arresting officer failed and/or neglected to ask the complainant for an affidavit in terms of sections 5 (7) and 8 (4) (a) of the Act to state that the plaintiff has contravened any prohibition, condition, obligation or order granted in the interim protection order.  The arresting officer testified that the plaintiff’s conduct did not constitute imminent harm to the complaint.  Consequently, in the absence of imminent harm, the arresting officer should not have arrested the plaintiff, but should have handed him a notice to appear in court in terms of section 8 (4) (ii) of the Act.  On the evaluation of evidence, I am satisfied that the plaintiff’s arrest and detention were unlawful. 

Quantum of Damages

[20] When assessing damages in matters such as the present, the evaluation of the personal circumstances of the plaintiff, the circumstances around the arrest and the nature and duration of the detention is taken into account[3].

The testimony of the plaintiff about his personal experiences and conditions that prevailed in the police cells and what effect the arrest had on him is taken into account.  The plaintiff is a Technical Officer at Telkom and was arrested for almost 3 days.  His stay in the cells was unbearable.

[21] The purpose of an award for general damages in the context of the matter such as the present is to compensate the claimant for deprivation of personal liberty and freedom and as well as the mental anguish and distress.

In Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) at par 26, Bosielo AJA (as he was then) emphasized that the primary purpose is “not to enrich the claimant but to offer him or her some much-needed solatium for his or her injured feelings”.

[22] Although the determination of an appropriate amount of damages is largely a matter of discretion, some guidance can be obtained by having regard to previous awards made in comparable cases.

In Rudolph and Others v Minister of Safety and Security 2009 (5) SA 94 (SCA) the plaintiff was unlawfully arrested on Saturday evening and released on Monday morning and was awarded the current value of R89 000-00.

In Fubesi v Minister of Safety and Security, case no 680/2009 (EC), Grahamstown, the plaintiff who was unlawfully arrested and detained for three (3) days was awarded damages in the current value of R106 000-00.

[23] I take into account the circumstances of the plaintiff’s arrest; the duration of the detention; the personal circumstances of the plaintiff; and the awards made in previous comparable cases.  The indignity of being confined in a police cell and being deprived of liberty must have had a negative effect on the plaintiff.  Having taken into account all the circumstances of this case, I deem R90 000-00 to be a fair and just amount of damages for the plaintiff.

[24] In the result the following order is made:

1) The plaintiff’s action against the defendant for unlawful arrest and detention succeeds;

2) the defendant is ordered to pay the plaintiff an amount of R90 000-00 for damages;

3) interest on the amount shall run at the prescribed rate from date of judgment to date of final payment;

4) the defendant to pay costs of suit.

_____________________________
D S MOLEFE

JUDGE OF THE HIGH COURT

 

APPEARANCES

Counsel on behalf of Plaintiff: Adv. H W Botes

Instructed by: De Klerk & Marais ING.

 

Counsel on behalf Defendant: Adv. M Mphahlele

Instructed by: State Attorneys

 

Date heard: 20, 21, 22 October 2015

Date handed: 24 November 2015

 


[1] See Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 587B – 589 F

[2] Advocate H W Botes

[3] See Ngcobo v Minister of Police 1978 (4) SA 930 (D) at 935 B-F