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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 37401/2011

DATE: 08 OCTOBER 2015

In the matter between:

MARUMO TSHEPANG QUEEN......................................................................................PLAINTIFF

And

MINISTER OF POLICE..................................................................................................DEFENDANT

JUDGMENT

DE KLERK (AJ)

Introduction:

[1] The Plaintiff, Mrs Marumo, a mother of four, instituted an action against the Minister of Safety and Security for damages suffered by her pursuant to her arrest and detention by members of the South African Police Service.

[2] Two further claims for loss of income and damages for assault, respectively, were not pursued at the trail by the Plaintiff.

Common cause facts:

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

1. The Plaintiff was arrested at her residence in Davidsonville by members of the South African Police Service on 2 March 2010 for allegedly contravening an interim protection order that was issued against her;

2. The Plaintiff was thereafter detained in the Roodepoort Police cells until the next day when she was released;

3. On the same day of the Plaintiff’s arrest, an interim protection order was issued against the Plaintiff in favour of her former domestic worker, a certain Ms Lehlona, in the Roodepoort Magistrate’s Court, inter alia for the collection of the latter’s personal belongings from the Plaintiff’s residence;

4. In accordance with the Domestic Violence Act, Act No. 116 of 1998 and the standard form of such interim protection orders, a warrant for arrest of the Plaintiff was simultaneously authorised and the execution thereof was suspended, subject to compliance by the Plaintiff with the provisions of the order.

5. The Plaintiff’s conduct (the alleged breach of the interim protection order by the Plaintiff) did not result in imminent harm to Ms. Lehlona.

6. At all material times the members of the South African Police Service, involved in the arrest and detention of the Plaintiff, acted in the course and within the scope of their employment with the Minister.

The issues:

[4] The issues for determination are:

1. Whether the arrest and detention of the Plaintiff was lawful. (This is the gist of the dispute.);

2. Whether the arrest of the Plaintiff took place pursuant to a warrant for arrest;

3. Whether the interim protection order was served on the Plaintiff before her arrest;

4. Whether the Plaintiff contravened the interim protection order. The Defendant’s contentions as per the pleadings:

[5] The Defendant denied that the Plaintiff was wrongfully arrested.

[6] The Defendant pleaded that the Plaintiff was lawfully arrested by a certain Constable Mmamogopodi pursuant to a warrant of arrest which had been authorised on 2 March 2010.

Legal principles:

[7] It is trite law that the onus rests on the Minister to justify the arrest.

[8] It is further trite law that if the arrest took place pursuant to a warrant, the onus of proving wrongfulness of the arrest rests on the Plaintiff.

Warrant of arrest:

[9] In Seria v Minister of Safety and Security and Others 2005 (5) SA 130 C at 134 it was held that: “Central to the purpose of the Act, is the granting of a protection order for the protection of a victim of domestic violence, and the simultaneous issue of a warrant for the arrest of the perpetrator.

The execution of the warrant is, however, suspended, but becomes activated in the event of an alleged breach of a protection order.

If it appears to a member of the Police that there are reasonable grounds to suspect that the complainant may suffer imminent harm in that event the Police Officer must execute the warrant and arrest the perpetrator.” And at p 144

... the validity of a warrant of arrest lies in the authority for its issue being ordered by a Court under Section 8 (1) (a) of the Act simultaneously with the issue of a protection order.”

Service of an interim protection order:

[10] An interim protection order must in terms of the provisions of Section 5 (3) (a) of the Domestic Violence Act, Act No. 116 of 1998 (“the Act”) be served on the Respondent in the prescribed manner.

[11] 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 be served on the Respondent.

[12] In terms of Sub Sections 5 (3) and (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.

[13] An interim protection order shall in terms of Section 5 (6) of the Act, have no force and effect until it has been served on the Respondent.

[14] In Omar v Government of the Republic of South Africa and Others [2005] ZACC 17; 2006 (2) SA 289 (CC) at 302 par 40 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.”

Enforcement of an interim protection orders:

[16] In terms of Section 5 (7) of the Act 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.

[17] 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 Sub Section (5), there are reasonable grounds to suspect that the Complainant may suffer imminent harm as a result of the alleged breach of the protection order by the Respondent, the member must forthwith arrest the Respondent for allegedly committing the offence referred to in Section 17 (a);

(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).”

[18] In Greenberg v Gouws and Another 2011 (2) SACR 389 (GSJ) at 396 it was held: the warrant of arrest in terms of the protection order could only be lawfully effected if Gouws had reasonable grounds to suspect that the Complainant might suffer imminent harm as a result of the breach of the protection order.”

Evidence:

[19] The Plaintiffs testimony was that on 20 February 2010 she had an altercation with her domestic worker, a certain Ms Lehlona, as a result of which the latter left her employ with the Plaintiff.

[20] The next day Ms Lehlona, accompanied by a certain Superintendent Meja, returned to the Plaintiffs residence in order for Ms Lehlona to collect her belongings.

[21] Superintendent Meja and Ms Lehlona left the Plaintiffs premises without having accomplished anything.

[22] On 2 March 2010 two female Police members (one of whom was a certain Constable Mmamogopodi), together with Ms Lehlona, attended at the Plaintiffs residence and informed the Plaintiff that they were sent by Superintendent Meja to look for a bag.

[23] The Plaintiff allowed the said members access to her residence to search for same, without success.

[24] Constable Mmamogopodi then phoned Superintendent Meja, who upon his arrival at the Plaintiff’s residence, enquired from the said members as to whether they had found the bag. When the said members replied in the negative Superintendent Meja arrested the Plaintiff.

[25] The Plaintiff, who had her seven month old baby with her, was taken to the Roodepoort Police Station where she was requested to sign certain documents before she was locked in a cell.

[26] The Plaintiff further testified that the interim protection order was not served on her. The Plaintiff admitted her signature on the return of service and testified that the only documents she signed were at the Police Station. The contents of these documents were not explained to her.

[27] The Plaintiff further testified that she was arrested without a warrant of arrest.

The Defendant’s case:

[28] Constable Mmamogopodi testified that on 2 March 2010 Superintendent Meja instructed her, (and another female member), to serve an interim protection order on the Plaintiff.

[29] Upon their arrival at the Plaintiff's residence, together with Ms Lehlona, Constable Mmamogopodi explained the contents of the interim protection order to the Plaintiff. Constable Mmamogopodi then served the interim protection order (but not the application as well) on the Plaintiff. As proof of same Constable Mmamogopodi referred to a return of service signed by the Plaintiff.

[30] Constable Mmamogopodi thereupon requested the Plaintiff to hand over Ms Lehlona’s belongings as provided for in the interim protection order. The Plaintiff was adamant that she would not hand it over and that they could rather arrest her.

[31] Constable Mmamogopodi then arrested the Plaintiff for contravening the protection order.

[32] When asked during cross-examination what the reason for her decision to arrest the Plaintiff was, Constable Mmamogopodi replied that it was stated in the protection order to collect luggage bags. It was further stated that in the event of non-compliance with the order an arrest should be affected. She understood same to mean that she had authority to affect an arrest.

[33] Constable Mmamogopodi’s further testified that Ms Lehlona did not face imminent harm as a result of the Plaintiffs conduct.

[34] Constable Mmamogopodi could not clarify why in a statement deposed to by her on the day of the Plaintiff’s arrest, she omitted to state that the Plaintiff refused to hand over the luggage bags, but instead stated that it could not be found. Furthermore the time on the return of service did not correspond with her evidence as well as her aforesaid statement.

[35] Nothing turned on the evidence of Superintendent Meja.

Evaluation of the evidence:

[36] The warrant for the Plaintiff’s arrest was authorised by an interim protection order.

[37] The execution of the warrant of arrest is however dependant upon imminent harm.

[38] Constable Mmamogopodi testified that the Plaintiff’s conduct did not constitute imminent harm to Ms Lehlona.

[39] Consequently in the absence of imminent harm the Police should not have arrested the Plaintiff, but instead should have handed her a Notice to Appear in Court on a charge of contravening the protection order in terms of Section 8 (4) (ii).

[40] In the premises I am persuaded that the arrest and detention of the Plaintiff were unlawful.

[41] In the light of my aforesaid finding it is not necessary for me to make findings on any of the other disputed aspects.

Quantum:

[42] The Plaintiff claimed damages from the Defendant in respect of the wrongful arrest and detention in the amount of R120 000.00.

[43] Counsel for the parties were ad idem that an award in the range between R50 000.00 and R55 000.00 would be appropriate in this matter.

[44] Having regard to the specific facts of the case and after considering, the importance of the Constitutional right to the individual’s freedom, awards made by courts in similar cases (the conservative approach of our courts) I am of the view that a just award would be R55 000.00.

In the result the following order is made:

[45] The Defendant is to pay the Plaintiff:

(a) The amount of R55 000.00;

(b) Interest on the aforesaid amount, at the prescribed rate of interest, from date of judgment to date of payment;

(cj) Costs of suit on the High court Scale as between party and party.

DE KLERK

ACTING JUDGE OF THE GAUTENG DIVISION HIGH COURT, PRETORIA

PLAINTIFF’S REPRESENTATIVES

ADVOCATE Mr. JHVDB Lubbe

INSTRUCTING ATTORNEY De Klerk & Marais Inc.

DEFENDANT’S REPRESENTATIVES

ADVOCATE Mr MS Mphahlele

INSTRUCTING ATTORNEY The State Attorney, Pretoria

DATE 8 October 2015

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