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IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Appeal No. : A114/2007

In the appeal between:

ABRAHAM MATAPI LEBAKA Appellant

and

MINISTER OF SAFETY AND SECURITY First Respondent

INSPECTOR FERREIRA Second Respondent

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CORAM: MUSI, JP et BECKLEY, J

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HEARD ON: 18 FEBRUARY 2008

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DELIVERED ON: 13 MARCH 2008

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JUDGMENT

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MUSI, JP

[1] This is an appeal against the judgment of the Magistrate’s Court in Bloemfontein dismissing the appellant’s claim. The appellant instituted an action against the Minister of Safety and Security, the first respondent, and Inspector Ferreira, the second respondent, for damages arising from the arrest of the appellant by the second respondent (Ferreira) in the night of 13 September 2003 in Bloemfontein. Following the arrest, the appellant was detained at the Bloemspruit Police cells up to 15 September 2003 when the charges against him were withdrawn. The appellant alleged that the arrest and detention were unlawful and claimed damages in the amount R25 000,00.

[2] The undisputed factual background against which the action arose is, briefly, that on the night of 13 September 2003 Ferreira and a colleague of his, Makgothi (his full names and rank are not on record), had been doing patrol duty, when they were called by radio to attend to a woman who had reported to the police station in connection with a domestic violence complaint. The woman was the appellant’s wife, Mpho Mildred Joyce Lebaka. She reported to Ferreira that her husband, the appellant, was at the common home and that she was afraid (apparently of him). She produced an interim protection order issued in terms of section 5(2) of the Domestic Violence Act, No. 116 of 1998. This order prohibited the appellant from, inter alia, assaulting Mrs. Lebaka (the complainant) and sexually or verbally abusing her. Paragraph 3.1.2.3 of the protection order is of particular importance. It prohibited the appellant from being on the premises of the shared residence at 23685 Ipopeng, Rocklands, Bloemfontein. Incidentally this is an incorrect number. The correct street number is 54357 Ipopeng.

[3] The complainant directed the police to her place of abode. On arriving there they found the appellant asleep in his room and woke him up. They confronted him with the protection order and told him that he had violated it by being at the common home. There is a dispute as to what actually happened leading to the appellant being arrested, but it is common cause that he did not resist, was bundled into the back of the police vehicle and ultimately detained up to 15 September 2003. It is also common cause that the arrest was without a warrant.

[4] Ferreira gave essentially two reasons for arresting and detaining the appellant. The first is that the appellant had committed an offence under the provisions of the Domestic Violence Act. This would seem to refer to two offences, namely, contravention of the interim protection order and malicious damage to property. The second was that the appellant had become aggressive and had threatened the complainant with violence. On the basis of the alleged threats Ferreira said he formed the view that the complainant’s life was in danger and he had to arrest the appellant in order to protect her. In substantiating the allegation that the appellant had posed a threat to the life of the complainant, Ferreira said that on hearing that the interim protection order prohibited him from being on his premises, the appellant became aggressive, called the complainant a “straatvrou” and further uttered the words “Jy sal sien”.

[5] The appellant denied that he had in any way threatened the complainant with violence or that he had verbally abused her. According to him the police exhibited the protection order and told him that it prohibited him from being on the premises. On his version, that was the only ground upon which he was arrested. And he made it clear that he had not been aware of such interim protection order as it had not been served on him. This is in fact undisputed.

[6] It is settled law that in an action for unlawful arrest and detention the onus is on the person who effected, or caused, the arrest to show that the arrest was justified and lawful. See MINISTER OF LAW AND ORDER AND OTHERS v HURLEY AND ANOTHER 1986 (3) SA 568 (AD) at 589 D – G; MHAGA v MINISTER OF SAFETY AND SECURITY [2001] 2 ALL SA 534 (Tk) at 537 j; LOMBO v AFRICAN NATIONAL CONGRESS 2002 (5) SA 668 (SCA) at 680 G – H.

[7] In this case it is common cause that the appellant was arrested by the police without a warrant. The onus was therefore on the respondents to show that the arrest and detention were lawful. In this regard the magistrate misdirected himself. He said that the onus was on the appellant to prove the existence of the grounds of justification, which is tantamount to saying that the appellant should have proved that the arrest was lawful. The learned magistrate expressed himself in the following terms:

“Die bewyslas rus op die eiser om op ‘n oorwig van waarskynlikhede aan te voer dat die arres sonder redelike gronde geskied het. Hy het duidelik nie daarin geslaag nie.”

The magistrate also seriously misdirected himself in another respect. He imported the principles of malicious prosecution into an inquiry relating to unlawful arrest and in the process relied on irrelevant authority.

[8] In resisting the action, the respondents placed reliance on the provisions of subsection 1(a), 1(b) and 1(q) of section 40 of the Criminal Procedure Act, 51 of 1977, as well as section 3 of the Domestic Violence Act. These provisions all authorise the arrest of people without a warrant. Section 3 of the Domestic Violence Act states:

“A peace officer may without 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.”

Subsection 1(q) of section 40 of the Criminal Procedure Act simply incorporates the latter provision into the Criminal Code. Section 40(1)(a) of the Criminal Procedure Act provides that a peace officer may arrest any person who commits or attempts to commit an offence in his/her presence. Section 40(1)(b) of the Criminal Procedure Act provides for arrest without a warrant where a peace officer reasonably suspects that a schedule 1 offence has been committed. I proceed to deal with these provisions.

[9] The grounds of justification contained in subsection 1(b) of section 40 of the Criminal procedure Act and section 3 of the Domestic Violence Act fall to be dealt together. The reasons for this is that the applicability of both provisions is based on the suspected commission of one offence, namely, malicious damage to property, which is also a schedule 1 offence. The question is whether Ferreira had reasonable grounds to suspect that malicious damage to property had been committed. Ferreira’s evidence is that he suspected that the appellant had committed the offence. He says that when he arrived at the front door of the appellant’s house, the complainant indicated that its lock was missing. He then went outside to look for it and found it on top of a heap of bricks. The lock had been attached to a chain apparently used to fasten the front door from outside and the lock was damaged. Ferreira simply assumed that it was the appellant who had damaged the lock and therein lies the suspicion that the appellant had committed a schedule 1 crime. There is no evidence whatsoever that Ferreira had then confronted the appellant about this and sought an explanation as to how, when, by whom and under what circumstances was the lock damaged. The appellant denied any knowledge of the damaged lock. In the circumstances there was no basis for suspecting that it was the appellant who had damaged the lock nor did the complainant made any such report to Ferreira. All that she allegedly said was that the lock was missing. The suspicion that the appellant had damaged the lock had no factual basis and was simply unreasonable.

[10] Damage to property is to defined in section 1 of the Domestic Violence Act as

“the wilful damaging or destruction of property belonging to a complainant or in which the complainant has a vested interest.”

The definition of domestic violence also incorporates damage to property. However, it is only when such damage to property

“harms or may cause imminent harm to the safety, health or wellbeing of the complainant”

that it will constitute an act of domestic violence. There has been no suggestion that the damage to the lock, in casu, had any such effect.

[11] I now turn to consider the provisions of section 40(1)(a) of the Criminal Procedure Act which state that a peace officer may arrest without a warrant any person

“who commits or attempts to commit any offence in his presence.”

Here there is no place for a reasonable suspicion. It is either the offence was committed or an attempt was made to commit an offence in the presence of the peace officer. The cardinal question is whether the appellant committed or attempted to commit any offence in Ferreira’s presence.

[12] As indicated earlier there is a dispute as to what happened leading to the appellant’s arrest. In this regard the magistrate made credibility findings in terms of which he found Ferreira to be a credible witness and rejected the appellant’s version where it conflicts with Ferreira’s. These credibility findings were attacked on appeal and Mrs. Reinders, for the appellant, submitted that the findings were clearly wrong and urged us to assess the evidence afresh and draw our own conclusions. Mrs. Eloff, for the respondent, supported the findings and of course it has to be borne in mind that it is trite that a court of appeal should not likely interfere with the credible findings of a trial court.

[12] An aspect that seriously tainted the magistrate’s assessment of Ferreira’s evidence is that he approached it on the incorrect basis that there was no onus on the respondent to provide justification for the arrest. That led directly to the assumption that once the appellant’s version was rejected, the respondents had to succeed. A closer examination of Ferreira’s evidence compels the conclusion that the respondents had not succeeded in discharging the onus to prove that the appellant had committed or attempted to commit an offence in Ferreira’s presence. I proceed to deal with the relevant evidence.

[13] Throughout his evidence, Ferreira spoke about the appellant having been arrested for contravening the provisions of the Domestic Violence Act, without specifying which offence had been committed. It is clear, however, that this is reference to the alleged violation of the interim protection order; in particular, that part of it that prohibited the appellant from being on the premises. That is in fact the sole reason why Ferreira was called to the appellant’s home. When asked under cross-examination what offence did the appellant commit, Ferreira could only cite malicious damage to property, an issue that I have already disposed of. That this vague reference to the violation of the provisions of the Domestic Violence Act is in fact a reference to the alleged contravention of the protection order is borne out by his answer under cross-examination that the 75% of the reasons for the arrest

“... is gestipuleer op die domestic violence papier: hy mag haar nie gedreig nie, hy mag haar nie vloek nie. Hy het dit gedoen.”

Clearly by domestic violence “papier” he is referring to the interim protection order.

[14] Now the appellant could not have contravened an order of which he had not been aware as it had not been served on him. Section 5(6) of the Domestic Violence Act makes it clear that an interim protection order shall have no force and effect until it has been served on the respondent. It would appear that Ferreira belatedly realised that the arrest of the appellant could not be justified on the basis of contravention of the protection order and he then shifted the focus to the allegation that the appellant had threatened the complainant and on that basis arrested him in order to protect her. Yet in regard to this allegation, Ferreira’s evidence reveals material discrepancies.

[15] Ferreira made it clear that he did not understand Sesotho, the language of the appellant and his wife, and that his companion, Makgothi, interpreted. This begs the question of whether reliance can be put on his evidence as to what the appellant allegedly said amounting to threats or words of abuse against the complainant. Significantly, neither Makgothi nor the complainant was called to confirm the correctness of the words uttered. Besides, the words allegedly uttered, namely “straatvrou” and “jy sal sien” cannot on their own be said to constitute serious threats on the life of the complainant.

[16] Besides, Ferreira contradicted himself when he said that the decision to arrest was not prompted by these alleged threats but that it was prompted by the finding of the damaged lock outside the house. Significantly this allegedly main reason for arresting the appellant does not appear in his statement to the police which was made shortly after the incident. This fact must be taken in conjunction with another aspect. Under cross-examination it was put to Ferreira that in her statement to the police, the complainant made no allegation, whatsoever, that the appellant had in any way threatened her or that her life had been put in danger. Ferreira could not dispute this. Nor did the legal representative for the respondents dispute it. The fact that the complainant made no such allegation seriously puts Ferreira’s version in question and may explain why the complainant was not called in the first place. Furthermore, the entry made by the prosecutor on the docket and read into the record, reveals that the appellant was charged for allegedly contravening the protection order. This contradicts Ferreira’s evidence as to the reason for the arrest.

[17] I conclude therefore that the respondents have failed to justify the arrest without a warrant in terms of section 40(1)(a) of the Criminal Procedure Act as well.

[18] I should mention that counsel for the respondents also sought to justify the arrest on the basis of the provisions of section 2 of the Domestic Violence Act, which impose a duty on a police officer attending the scene of an incident of domestic violence to render assistance to the complainant. In this regard, she referred to the sentiments embodied in the preamble to the Domestic Violence Act acknowledging that domestic violence is a serious social evil, which impinges on the constitutional rights of equality, dignity, freedom and security of the women and children of our country, in particular. Counsel contended that the arrest of the appellant should be viewed in the context of these sentiments and the purpose of the Domestic Violence Act as a whole.

[19] There can be no gainsaying the fact that violation of the rights referred to above is a serious matter. However, the protection of these rights cannot be achieved through the unjustified violation of the equally important rights to liberty, freedom and dignity of the suspect. The law maker has, through section 40 of the Criminal Procedure Act, clearly stipulated the circumstances under which arrest without a warrant may be carried out and these provisions incorporate section 3 of the Domestic Violence Act. Significantly section 3 is the only provision in the Domestic Violence Act that authorises arrest without a warrant.

[20] Section 2 of the Domestic Violence Act does not envisage arrest as one of the forms of assistance that a police officer is obliged to render to a complainant on the scene. In casu, Ferreira could have arranged alternative shelter for the night for the complainant if he genuinely believed that harm would come her way if left behind. That is an example of the kind of assistance provided for in the section.

[21] Regarding quantum, counsel were all agreed that if we should uphold the appeal, we should decide on the appropriate amount of damages and award it. In assessing quantum it should be borne in mind that unlawful arrest and detention is a serious encroachment not only on the freedom and liberty of the arrested person, but also on his or her dignity. The factors to be taken into account in this case, are that the appellant was a man of some standing in the community, having served as a municipal councillor on two occasions since 1994. He testified that he was employed as a carpenter and had to be absent from work on 15 September 2003 due to the incarceration. He testified that he was humiliated as a result of the arrest and detention. The humiliation was all the more severe when he had to explain to his employer that he could not report for work because he had been detained in a police cell. On the other hand, there is evidence that the appellant’s relationship with his wife had been rocky and they are presently no longer living together as man and wife due to the continual quarrels. He had on a previous occasion spent time in prison whilst awaiting trial on a charge of domestic violence. He testified that he too had problems with his wife and had previously also obtained a protection order against her. And there is the fact that he was courteously treated by the police and was not subjected to any unduly adverse conditions whilst in detention. All these factors would have the effect of lessening the quantum of damages.

[22] The appellant’s counsel referred to a number of reported judgments and urged us to seek guidance from the awards made in those earlier judgments. In MINISTER OF SAFETY AND SECURITY v SEYMOUR 2006 (6) SA 320 (SCA) Nugent JA cautioned that few cases can be truly comparable when it comes to awarding general damages. Nonetheless the learned judge of appeal indicated that awards made in previous cases may provide valuable guidance. In that case the SCA awarded an amount of R90 000,00 where the person had been unlawfully arrested and detained for a period of five days. Further examples of awards in previous cases are to be found at p. 326, par. 19 of the judgment. The respondent in the present case was detained for two days. It suffices to say that counsel for the respondents agreed that R15 000,00 is the minimum that can be awarded in the circumstances of this case. I consider this to be an appropriate amount.

[23] In the premises, the appeal is upheld with costs and the following order is made:

(a) The decision and order made by the magistrate is set aside and replaced with the following:

(i) The plaintiff’s action succeeds and the defendants are ordered to pay him damages in the amount of R15 000,00 plus costs, jointly and severally, the one paying the other to be absolved.

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H.M. MUSI, JP

I concur.

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A.P. BECKLEY, J

On behalf of appellant: Adv. C. Reinders

Instructed by:

Horn & Van Rensburg

BLOEMFONTEIN

On behalf of respondents: Adv. Z. Eloff

With:

Adv. L.H. Adams

Instructed by:

State Attorney

BLOEMFONTEIN

/sp

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