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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

FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: THE MINISTER OF SAFETY AND SECURITY & 3 OTHERS

And

MARILYN E. W.

• Case No: CA 98/08

• High Court: EASTERN CAPE DIVISION

DATE HEARD: 20/10/08

DATE DELIVERED: 11/12/08

JUDGE(S): JONES J, JANSEN J, GOOSEN AJ

LEGAL REPRESENTATIVES –

Appearances:

• for the Appellant(s): ADV: Notshe SC & ADV: Simayi

• for the Respondent(s): ADV: Brooks

Instructing attorneys:

• Appellant(s): MLONYENI LESELE INC.

• Respondent(s): NETTELTONS ATTORNEYS

CASE INFORMATION -

1. Nature of proceedings : APPEAL

No reportable

In the High Court of South Africa

(Eastern Cape Division) Case No CA 98/2008

(Grahamstown High Court)

In the matter between

THE MINISTER OF SAFETY AND SECURITY 1^st Appellant

INSPECTOR NOKWALI 2^nd Appellant

INSPECTOR QAMRA 3^rd Appellant

INSPECTOR NDZALO 4^th Appellant

and

M. E. W. Respondent

Coram JONES and JANSEN JJ, and GOOSEN AJ

Summary Appeal – action for damages for rape – respondent raped by her husband – the appellant police officials allegedly liable by reason of their negligent failure to arrest the husband in terms of a warrant issued with a family violence protection order some years prior to the rape – the findings of fact and credibility made by the trial court was challenged on appeal – there were insufficient grounds for concluding that the trial court’s evaluation of the oral evidence before him was wrong – there was also no basis for disturbing his conclusion that the failure of the police to arrest the husband was the factual and legal cause of the respondent’s damage.

JUDGMENT

JONES J

[1] This is an appeal against a decision of Kemp AJ in the East London Circuit High Court in an action for damages for rape. At the commencement of the trial the learned judge ordered that the issues of liability and quantum of damages be tried separately. He proceeded with the trial on the merits. After hearing evidence, he concluded that the rape was caused by the negligent failure of three members of the South African Police Services to arrest the rapist in terms of a warrant of arrest issued together with a protection order made under the Prevention of Family Violence Act, No 133 of 1993. He made an order that the defendants were jointly and severally liable for whatever damages the respondent was able to prove as a result of the rape. The appellants, who are the Minister of Safety and Security and the three police officials concerned, appeal against this decision, with leave from the court a quo.

[2] Many of the facts were not in dispute at the trial. It was common cause that the respondent, then a 46 year old pharmacy assistant, was raped by her husband at her home at [number] M... Road, Morningside, East London on Tuesday, 26 November 2002. He was HIV-positive at the time. He has since been convicted of the rape, and sentenced to a term of imprisonment.

[3] The respondent is now divorced from him. At the time of the rape they had been estranged for many years. As long ago as March 1996 the respondent had sought and been granted an interdict under the Prevention of Family Violence Act which inter alia ibited her husband from entering the premises at [number] M... Road, Morningside, East London where she resided then and where she still resided on 26 November 2002. This order is deemed to have been made in terms of the current Domestic Violence Act 116 of 1998, and was recently re-stamped by the magistrate’s court which issued it. It remains in force. A warrant for the arrest of her husband was issued simultaneously with the interdict, which also remains in force until the interdict is set aside. Despite the respondent and her husband being estranged and living separate lives, and despite the terms of the Domestic Violence Act interdict, the respondent’s husband did not remain away from the respondent’s home at [number] M... Road. As I understand the evidence he did not live there permanently, or, as a rule, even sleep there regularly. He had relationships with other women which kept him away. But he used the respondent’s house as a base, a place where he might leave clothing, or come for a bath or a meal, or spend time in the living room watching television and consuming liquor, or, occasionally, use his son’s room as a bedroom. The respondent chose not to enforce the interdict in spite of a history of serious physical, emotional and verbal abuse directed not only at her, but also at her son (the child of her husband) and her daughter by a previous marriage, who had left [number] M... Road to live with an older sister after the respondent’s husband had been charged with and convicted of abusing her. She explained that she found it easier to allow her husband to come and go as long as he did not harm her, rather than to provoke possible violence by insisting that he obey the interdict. According to the respondent’s personality profile, which was put in through the evidence of Ms Jean Fielding, a clinical psychologist, this is not an uncommon reaction by women in abusive relationships, and it was in many ways to be expected of the respondent.

[4] Shortly before the rape, the respondent had a change of stance. She had reason to believe that it had become necessary to enforce the interdict. To that end she had it re-issued, so to speak, by getting it re-stamped about three weeks before the rape. She did so because her husband had become more and more threatening in the period leading up to the rape. He wanted money from her for some unspecified purpose, an amount of R3000-00 which she could ill afford. He persistently demanded it with progressively increasing aggression and desperation, and she became progressively more and more frightened. On the Saturday morning before the rape she telephoned her married daughter from her place of employment and asked her daughter to arrange for the police to be at her house at 1:00 p.m. when she would return home from work, in order for them to enforce the protection interdict. She expected her husband to be at her home at that time. Her daughter made three telephone calls to the police that morning to achieve this, and was assured that her request would be attended to. She made it clear to the police that her mother was in possession of the necessary order of court and wanted it to be implemented. The police did not arrive at her house at 1:00 p.m. But it is common cause that the 2^nd, 3^rd, and 4^thappellants arrived later that Saturday afternoon. What happened after they arrived is in dispute.

[5] The respondent’s evidence was that when the police arrived she met them at the gate, showed them the interdict and the warrant, and advised them that her husband was in the house. They accompanied her inside, and after making enquiries from her husband, they took his side. The 4^thappellant, a woman police inspector, was apparently in charge. She did most of the talking. She suggested that this was in reality a civil case, and at one point asked her why she was making allegations against such a nice man, and wanted to know if she had been drinking. They eventually left without removing her husband, and without taking her with them, which she had asked for as an alternative. Instead, they said they would return later, which they did not do. Her husband’s reaction when they had left was to gloat over her in obscene terms. Some of the details of the respondent’s version were supported by the evidence of her domestic servant, who was in the next room doing the ironing, and who went through to the front room once or twice. Notably, the servant agreed that the respondent had showed the police the order of court and that the police woman had suggested that the respondent had been drinking.

[6] The police version was that the respondent met them at the gate as she said. But she did not at that stage or at any other time show them an order of court or a warrant of arrest. Nor did she request the respondent’s husband’s removal from the home. Instead, she told them that she had wanted their assistance in leaving the common home, but that she and her husband had since sorted the matter out, and that police involvement was no longer necessary. They went inside and were able to confirm that everything was in order and that they need take no action. According to them the husband said that his wife had wanted to leave, but that he had offered to go instead, and showed them a suitcase packed with his belongings. The two of them said that they had thereafter settled their differences. The police left after a few minutes. They told the respondent to telephone 10111 should this become necessary. This evidence was given by the 2^ndand 3^rdappellants. The 4^thappellant did not testify. The two policemen said that they did not see a domestic servant at the scene. Only the respondent and her husband were present.

[7] Resolution of the factual dispute about what happened that Saturday afternoon was central to the issue of whether or not the police acted wrongfully. The trial judge had two irreconcilable and mutually destructive versions before him. These fell to be considered against the background of certain incontrovertible facts: (a) that the respondent had sent for the police; (b) that her husband was present at her house when the police arrived; (c) that she was in possession of a protection order prohibiting her husband from being present at her house. On the respondent’s version she showed them the order of court, requested them to act upon it, and they refused. If that is so, the respondent’s husband was in flagrant breach of the protection order before the very eyes of the police, the police were in wrongful breach of their duty as police officers, and their omission to do their duty was prima facie justification. If, on the other hand, the police version is correct that the respondent told them on their arrival that she and her husband had resolved their differences, and if they were not shown the protection order and did not know about it, they cannot be said to have acted unlawfully. It was therefore necessary for the trial court to make an estimate of the credibility of the witnesses in order to resolve the conflict.

[8] The proper approach of a court which is called upon to determine which of two mutually destructive versions should be accepted was re-stated in the judgment of Stellenbosch Farmers Winery Group Ltd v Martell et Cie 2003 (1) SA 11 (SCA) at 14J-15E, where Nienaber JA is reported as follows:

To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c), the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.

[9] This is not a case where all factors are equipoised. The judgment sums up the learned trial judge’s conclusion on the facts as follows:

When considering the totality of the evidence it is clear that in common with human nature and frailties, there are weaknesses on both sides. There appear however to be more than weaknesses on the defendants’ side. There appear to be improbabilities and deliberate lies. On the plaintiff’s side there appear to be probabilities which are supported by the facts. The plaintiff’s version, when carefully considered with its weaknesses, appears to be more credible than the defendants’, which appears to be regimented, recited and deliberately deceitful. Under the circumstances I am of the view that plaintiff has succeeded in proving her claim.

[10] Counsel for the appellants submitted that the passage quoted above shows the trial court found that there were problems in the evidence of both sides, and therefore decided the matter on the probabilities. That is an over-simplification. On a proper reading, the trial judge found in terms that the respondent had discharged the onus of proof. It seems to me that he did so after correctly applying the classic statement of principle of Eksteen J (as he then was) in National Employers’ General Insurance Co Ltd Jagers 1984 (4) SA 437 (E) 440D-E, I-H, which is to the following effect:

It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.

The trial judge in this case found in effect that on an evaluation of the totality of the oral evidence of both sides and bearing in mind the respective weaknesses of the witnesses on both sides, the respondent had succeeded in discharging the onus of proving that her version was the more credible and probable version and hence the acceptable version, and that the defendants’ version, which had more serious weaknesses and which was given by witnesses whose evidence was improbable, recited, regimented, and deliberately untruthful and deceitful, could properly be rejected as false.

[11] These are strong findings of fact and credibility, based on an estimate of the credibility of the witnesses and the probability of their versions, considered together as part of a single holistic enquiry. The rule is that these findings are presumed to be correct and will be upheld on appeal unless the appellant is able to convince the appellate court (a) that they were vitiated by a material irregularity or misdirection, or (b) that from a reading of the record the trial court’s evaluation of the oral evidence was clearly wrong (Kunzv Swart AD 618 Solomon JA 655; Rexv Dhlumayo (2) SA 677 (A) 705; Sv Francis 1991 (1) SACR 198 (A) 204e-f). These cases emphasise that a reasonable doubt about the correctness of the trial judge’s conclusions of fact is insufficient to justify departing from them on appeal, and that bearing in mind the advantage which a trial court has of seeing, hearing and appraising the witnesses, it is only in exceptional cases that a court of appeal will be entitled to interfere with a trial court's evaluation of oral testimony.

[12] Mr Notshe, who argued the appeal on behalf of the appellants, did not expose any material misdirections by the trial judge. His argument also did not show that this is one of the exceptional cases where it is possible to conclude, with references to passages in the record, that the court a quo’ of the oral testimony was not merely doubtful but clearly wrong. He could go no further than to make a bald submission, without reference to specific passages of evidence, that the appellants’ witnesses were not lying witnesses and could have been mistaken where they were wrong on the facts. He made no attempt to demonstrate that the judge’s impression of the veracity of the police witnesses was not justified in the light of any of the considerations listed by Nienaber JA in the Stellenbosch Farmers Winery Group Ltd v Martel et Cie judgment referred in paragraph 8 above. I refer for example to police witnesses’ candour and demeanour in the witness-box, their bias (in this context their self interest in not being seen to have failed in their duty), and the cogency of their performance in the witness box compared to that of the plaintiff and her domestic servant, who testified about the same incident and who were found to be good witnesses who did not give the impression of being untruthful. Of particular relevance here is the judge’s finding that the police gave recited and regimented evidence, and that they were deliberately deceitful. Mr Notshe not able to point to any objective reasons for disregarding these findings. Furthermore, there were weaknesses in the police evidence in the form of internal contradictions in their evidence, external contradictions with each other and with what was put on their behalf, and inadequacies in their explanations about entries made in contemporaneous police note books. In these circumstances, the trial judge was justified in commenting adversely on the failure to call the 4^thappellant, who on both versions was the main police protagonist, who was not merely a witness but a party, and who was in a position to resolve some of the important deficiencies in the appellants’ case.

[13] For the rest, Mr Notshe’s argument attempted to challenge the trial judge’s conclusion that it was improbable that, having sent for the police, the respondent would change her mind when they arrived, and would simply send the police away without even showing them the court order. Mr Notshepostulated as a probability that the respondent’s husband had persuaded her to withdraw the complaint before the police arrived. This postulate was entirely speculative, and presupposed that he knew that she had complained to the police, which is against the evidence and the probabilities. In pursuing it he relied upon (a) what seems to me to be a misreading of Ms Fielding’s psychological opinion, and (b) upon unconvincing items of evidence, many of them peripheral and taken out of context, such as evidence about repairs done by the respondent’s husband to her car on the following Monday and whether the police were shown pet snakes in a cage before they left the house, which in my view take the matter no further. Their cumulative effect does not come close to justifying the conclusion that the trial judge’s findings of fact were clearly wrong. Furthermore, Mr Notshe’s argument ignores improbabilities in the police version which tell against its acceptance. An example is the improbability specifically mentioned by the trial judge the respondent told the police that she needed their assistance to leave her home against her husband’s wishes. It was never anybody’s case that she wanted to leave home in the face of an objection by her husband. The police suggestion that she said so makes no sense in the light of the known facts. Similarly, there is the related improbability that her husband said that he offered to leave instead and showed the police a packed suitcase to back him up. All of this is improbable when regard is had to the rest of the evidence. Further, these allegations were not even put to the respondent in cross-examination. This reveals more than just a weakness in the appellants’ case. It supports the conclusion of deliberate dishonesty.

[14] In conclusion, therefore, the appellants’ argument based on a re-examination of the probabilities of the case as a whole does not permit the conclusion that the trial judge was clearly wrong on the facts.

[15] The second point taken on appeal is that the evidence for the respondent does not discharge the onus of proving that the wrongful failure to arrest the respondent on the Saturday afternoon was either the causa sine qua non the legal cause of the rape.

[16] On the issue of factual causation (the application of the causa sine qua non ), we were referred to the restatement of principle in International Shipping Co (Pty) Ltdv Bentley 1990 (1) SA 680 (A) at 700E – I and Minister of Safety and Security Carmichele (3) SA 305 (SCA) paras 54 to 61 in order to provide an affirmative answer to the question whether the respondent would have been raped by her husband on the Tuesday night even if the police had arrested him on the Saturday afternoon. The answer to this question does not, however, turn on matters of principle. The appellants’ argument fails on the facts. It goes without saying that if the police had arrested him on the Saturday afternoon, and if he had been kept in custody thereafter, he could not possibly have raped the respondent on the Tuesday night. But Mr Notsheraised the possibility that the police might have arrested the respondent’s husband and removed him from the premises without taking him into custody, or that even if he had been taken into custody on Saturday he would have been released on bail on the following Monday morning. In that event, and if the husband had returned to the respondent’s home whenever he wanted as he had done in the past, he would have been in a position to commit the rape on the Tuesday. In my view this reasoning is fallacious, primarily because it overlooks the important and highly relevant effect of positive police action on the future conduct of the respondent’s husband. The effect of an arrest for breach of the protection order, followed by release without detention, would as a matter of probability have been significant. It is unlikely that he would within a few days expose himself to further arrest, this time without the likelihood of immediate release, by repeating the offence. The chances of a repeat offence if he were released on bail on the Monday morning are even more remote. It is unthinkable that he would be released on bail without a stringently worded condition that he was not to infringe the protection order again, a condition it would have been foolhardy in the extreme to break. The appellants’ argument is unsound because it illogically and unrealistically assumes that the respondent’s husband would, as a matter of probability, have continued to flout the protection order even after he had been arrested and faced prosecution for doing so. In the light of these objectively viewed considerations the most probable inference is that if the police had taken positive action against the respondent when they were called to her home, he would not have raped her. The causa sine qua nontest of causation is satisfied on a balance of probability.

[17] There is in my opinion no merit in the argument that the damage in this case is too remote. In the light of the purpose of issuing a protection order and a warrant, it cannot logically be submitted that violence to the person of the respondent was not a reasonably foreseeable consequence of the police failure to take action. Nor can it be submitted that the consequence of rape was not proximately or directly connected to the failure of the police to take action. The close connection in place and time is self evident – the respondent was raped within a few days of the wrongful omission to take proper and adequate steps for her protection at her home as required by the order of court. Nothing happened between the police omission and the rape which can properly be regarded as a novus actus interveniens. The suggestion by counsel was that the respondents’ failure to seek further police protection on the Sunday, Monday and Tuesday may constitute a novus actus. In the light of the failure of the police to provide protection on the Saturday, this is not only entirely unrealistic (as the expert evidence of Ms Fielding explains); it begs the question. Indeed, it is absurd to suggest that the police can be exonerated from liability for a negligent omission on the Saturday because they were not afforded the opportunity of making the same negligent omission on the Sunday or the Monday. Mr Notshealso suggested that the imputation of liability in the circumstances of this case places an intolerable burden on the police. This kind of policy consideration can indeed have impact upon the principles of remoteness of damage. It is a relevant consideration. But this kind of situation has recently been considered by the courts and found not to be over-burdensome in modern society. See, for example, the various Carmichele [2001] ZACC 22; (2001 (4) SA 938 (CC) 938; 2004 (3) SA 305 (SCA)) and Minister of Safety and Security Van Duivenboden (6) SA 431 (SCA). On the facts and circumstances of this case, no sound reasons of policy suggest themselves to justify denying the respondent a remedy.

[18] In the circumstances the appeal is dismissed, with costs.

RJW JONES

Judge of the High Court

23 November 2008

JANSEN J: I agree.

JCH JANSEN

Judge of the High Court

GOOSEN AJ: I agree.

G GOOSEN

Judge of the High Court (Acting)

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