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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 HIGH COURT OF SOUR AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                                                                                                CASE NO: CA 350/2012

                                                                                                DATE HEARD: 23/05/2014

                                                                                                DATE DELIVERED: 10/07/2014

In the matter between

MINISTER OF SAFETY AND SECURITY                                                             APPELLANT

and

N. E. M.                                                                                                               RESPONDENT

JUDGMENT

ROBERSON J:-

[1] The respondent successfully sued the appellant in the Magistrate’s Court, Uitenhage, for damages arising from his alleged wrongful arrest and detention.  He was awarded damages in the sum of R15 000.00.

[2] This appeal is directed at the magistrate’s finding that the arrest and detention of the respondent were not justified.  A second ground of appeal, that the award of counsel’s fees at a higher rate than that prescribed in the tariff was not justified, was not pursued.

[3] It was common cause that the respondent was arrested at his home without a warrant by members of the appellant in the early hours of 24 September 2006 and detained at the police cells for close on five hours.  He was released and served with a written notice to appear in court on a charge of contravening s 59 (1) (d) of the Eastern Cape Liquor Act 10 of 2003, in that he was drunk and disorderly at [……..] (this was his home).  The charge was withdrawn by the public prosecutor.

[4] The defendant pleaded that the arrest was justified in that the respondent was arrested for “drunkenness and disorderly”.  Although not specifically pleaded, this was a reliance on s 40 (1) (a) of the Criminal Procedure Act 51 of 1977 (the Act) which provides that a peace officer may without a warrant arrest a person who commits or attempts to commit an offence in his presence.  The defendant pleaded in the alternative that the arrest followed a complaint of domestic violence by the wife of the respondent, and was justified because the police were carrying out their responsibilities in terms of s 205 of the Constitution read with s 40 (1) (q) of the Act. 

S 205 (3) of the Constitution provides:

“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

S 40 (1) (q) of the Act provides that:

“ a peace officer may arrest without a warrant a person 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.”

[5] The arresting officers were Constable Murray and Reserve Constable Matthys.  Matthys, who at the time had six years’ service and who left the police force in 2009, testified that he and Murray received a report that the respondent’s wife had telephoned their control room to complain that the respondent was drunk and “rebellious”.  When they arrived at the respondent’s house, his wife opened the door and told them that when she returned home from Jeffreys Bay the respondent was drunk and had wanted to beat her because he wanted to have sex with her.   She appeared nervous and scared of the respondent but she had no physical injuries.  She told them that the respondent was in the bedroom, and when they entered the bedroom they found the respondent in the bed, covered by the blankets and pretending to be asleep.  His child was sleeping next to him.  Matthys agreed that at that stage there was no reason to arrest the respondent and that he was not a threat to his wife.  The respondent jumped out of the bed and they saw that he was naked.  He became aggressive towards his wife and wanted to beat her in front of them because he was angry that she had telephoned the police.  Murray kept the respondent away from his wife and Matthys told the respondent that he could not beat his wife in front of them.  Matthys was of the view that the respondent was drunk because he could not stand properly and smelled of alcohol.

[6] He and Murray asked the respondent’s wife if she wanted to open a case for “maybe attempted rape or something like that” and she said she did not but that she would go the following day to room 36 for a protection order[1], and thereafter go to the police station to open a case.   At the time there was no protection order in existence.  Matthys and Murray then arrested the respondent for “drunk and disorderly”.  The disorderly element of the charge was the respondent’s conduct in jumping out of bed and displaying aggression towards his wife.  They informed him of the charge and explained his rights.  According to Matthys they could not leave him there because he was drunk and disorderly and, because of the way he jumped out of bed and had wanted to grab his wife, he could have killed her.  Matthys agreed that it was not an offence to be drunk and disorderly in one’s own home but said that if a person is rebellious he can be arrested.  He elaborated by saying that if someone is rebellious and drunk he can be arrested if his wife or son asks the police to arrest him if he is a nuisance in the house.

[7] The respondent’s wife provided clothes for him but he did not want to put them on and took his shirt off.  The respondent did not go voluntarily to the van and force had to be used.  Matthys denied that the respondent asked to be taken to his parents’ house.  The respondent was taken to the police cells.  Matthys completed the “first information of crime” document, in which he recorded the respondent’s personal details, the date and time of arrest, and the offence for which he had been arrested, which was stated as “drunk and disorderly”.

[8] Matthys was referred in cross-examination to the written statement of the respondent’s wife which was taken by Murray after the arrest, in the presence of Matthys.  In the statement she said that she was trying to sleep and the respondent, who was drunk, touched her and tried to keep her from sleeping.  She tried to call the police from her cellphone but the respondent took it and removed the sim card.  She called the police from the house phone.  The respondent threw clothing from the cupboard on the floor, causing a mess.  She said that she only telephoned the police to remove the respondent from the house and she also told the police that she would go to room 36 for an interdict.  When it was pointed out to Matthys that she had said nothing further in her statement, Matthys said that she had told them that the respondent had wanted to have sex with her but she did not want to have sex because she was tired.  He also said that she did not include everything in the statement because she was going to open a case against the respondent for forcing her to have sex with him.  Matthys agreed that the purpose of the statement was to justify the arrest of the respondent.

[9] It was only during cross-examination, when the respondent’s version was put to him, that Matthys mentioned that the respondent’s wife had told them that she was worried about her cellphone sim card, because the respondent had taken the sim card out of her cellphone when she wanted to phone the police.  Murray asked the respondent for the sim card but he refused to hand it over.  When the respondent told his wife that he was not going to give her back the sim card, Matthys could see from the expression on his face that he was aggressive.  Matthys however denied that the respondent was arrested because he had refused to give back the sim card.  He said the respondent was arrested because he was drunk and disorderly and had refused to give back the sim card.

[10] It was put to Matthys in cross-examination that during the tea adjournment, while he was still testifying, he had a fifteen minute conversation with Murray and had discussed his evidence with Murray.  Matthys initially denied discussing the case, saying that he and Murray had talked about his new job and Murray’s wife’s pregnancy, but after persistent questioning he eventually admitted that he had told Murray what questions he had been asked while testifying and what his answers had been.

[11] Murray understandably was not called to testify and the respondent’s wife L. M. testified on behalf of the appellant.  She and the respondent are married in community of property.  She described the marriage as “sometimes it is peace, sometimes we fight.”  On the night in question she and her son returned home from Jeffreys Bay and went to sleep.  The respondent returned home later and woke her up.  He was drunk.  He pulled the blankets off her and wanted to have sex with her, but she told him she did not want to.  When asked in cross-examination if the respondent had wanted to rape her she answered:

“I don’t say he wanted to rape me but I was not in a mood to have sex with him at that time.”  

[12] They argued and pushed each other with their hands, but she was not injured.  She denied that they had quarrelled because she had received a call on her cellphone which the respondent regarded as suspicious.  She told the respondent that she was going to call the police.    The respondent took the cellphone from her and when she took it back from him the sim card was missing from the cellphone.  She suspected that he had taken the sim card and demanded the sim card from him.  She then called the police from their landline.  She could not recall where the respondent was at this time.  She called the police because the respondent did not want to listen to her when she said she wanted to sleep and he did not want her to sleep. She wanted the police to tell the respondent that she was tired and needed sleep and that he should not want to have sex with her without her consent. 

[13] Two police officers arrived and asked her why she had called the police and she told them what had happened.  When asked what she told the police, she said:

“I said he must stop.  He wanted to sleep with me and I didn’t want to sleep with him”.

She also told the police that she wanted the respondent to give her back the sim card.  She showed them that there was no sim card in the cellphone.  The police asked the respondent why he was behaving in this manner and why he had taken the sim card.  The respondent told the police that he had not taken the sim card.  The respondent then went to the bedroom and the police followed him into the bedroom.  Mrs M. remained in the lounge and did not hear what was said between them in the bedroom.  An argument between the policemen and the respondent ensued, and the policemen emerged from the bedroom with the respondent and took him away in the police van.  While the police were at the house the respondent was angry but not physically violent towards her or the police.

[14] While the police were still at the house she made a statement and by doing so understood that she opened a case against the respondent for wanting to have sex with her without her consent and for taking her sim card.  She agreed that if the respondent had tried to attack her she would have remembered that clearly at the time she made the statement.  There was no follow up to the case she opened.  The next day the respondent returned home and when she did not open the door at his knock, he broke open the door.  She fled with her son to the neighbours.  The police arrived but did not take statements and she was told that the police who had been there the previous day had taken a statement.  She did not lay a charge of attempted rape, nor did she apply for a protection order the next day, because the respondent’s parents arrived and said the problem should be resolved within the family and the police should not be called.  The matter was temporarily resolved but later the respondent reverted to his former behaviour.  Two weeks prior to her testimony she went to the magistrate’s court to apply for a protection order but was told that she was too late and she was not attended to.

[15] The respondent testified that on the night in question he had been drinking with friends at his parents’ home.  Although he had consumed alcohol, he was not drunk.  He went home and while he and his wife were watching television her cellphone rang but she did not answer the call and switched the phone off.  The respondent wanted to see the number so he could phone the caller but she would not allow him to take the phone and as he took the phone from her, it fell and broke in two.  While she was re-assembling the phone she asked him where the sim card was and he said it must be on the floor.  A quarrel ensued and he took their child and went to bed in the bedroom.  His wife came into the bedroom looking for the sim card, throwing clothes from the clothes basket on the floor while she was doing so.  The respondent was not aware if she made any phone calls. 

[16] The respondent fell asleep and was awoken when his wife came into the bedroom with the police.  The police said that his wife had told them that she wanted the sim card, and if he did not give her the sim card he would be arrested.  His wife told the police to arrest him.  He did not threaten his wife with physical harm in the presence of the police and he denied wanting to have sex with his wife without her consent or pushing her.  The police accused him of stealing the sim card and arrested him.  They did not mention to him that he wanted to have sex with his wife without her consent. He usually sleeps naked and when the police grabbed him out of bed he struggled because he wanted to put his trousers on.  He was taken in the police van to the police station.  He asked the police rather to take him to his parents’ home but they refused. 

[17] He was kept in an unhygienic cell with other persons and was not given food or water. It was only when he was handed a document on his release that he found out that he had been arrested for being drunk and disorderly.  After his release he went home and knocked on the door.  His wife did not open so he kicked open the lower part of the door.  His wife ran out and he went to sleep.  The police arrived and said that his wife wanted him to be locked up but they could not do so without a reason.

[18] The magistrate was clearly not impressed with the respondent’s evidence and pointed out that he gave expansive answers in cross-examination and attempted to exculpate himself.  He also mentioned that the respondent’s evidence differed from the summary of the respondent’s case given by his attorney during the special plea proceedings.  The magistrate consequently was of the view that it was safer to decide the matter on the version of the appellant’s witnesses.  In my view he was correct to do so.  The record of the special plea proceedings was not before us, but a reading of the respondent’s evidence contained in the record before us demonstrated that the magistrate’s criticism was fully justified.

[19] The magistrate did not deal with the credibility of Matthys and Mrs. M. but appears to have accepted Mrs. M.’s evidence in preference to that of Matthys.  Again, I am of the view that he was correct to do so.  By initially denying that he had discussed his evidence with Murray, Matthys proved to be a dishonest witness and, in view of the fact that he only charged the respondent with being drunk and disorderly, his evidence of the respondent’s aggression towards Mrs. M. in his presence was improbable.  If there had been such conduct on the part of the respondent, it is probable that Mrs. M. would have referred to such aggression when she testified, and in her written statement taken at the time of the incident.  According to her she was not even in the bedroom when the police encountered the respondent there.  As it turned out, the only reference in her testimony to physical violence was that she and the respondent had pushed each other with their hands.  She appears to have been a reliable witness and the tenor of her evidence did not suggest that she was minimising the events of that night in order to protect the respondent.  On the contrary, much of her evidence was not favourable towards the respondent, and she did not at all downplay the problems she perceived in their marriage.

[20] RELIANCE ON S 40 (1) (A) OF THE ACT AND THE CHARGE OF DRUNK AND DISORDERLY

This ground of justification was correctly not pursued on appeal.  S 59 (1) (d) of the Eastern Cape Liquor Act 10 of 2003 provides:

“59.   General offences.—(1)  No person may—

(a)       ………………………………………..

(b)       ………………………………………..

(c)       ………………………………………..

(d)  be drunk and disorderly in or on—

(i)             any road, street, lane, thoroughfare, square, park or market;

(ii)           any shop, warehouse or public parking garage;

(iii)          any form of public transport; or

(iv)          any place of entertainment, cafe, eating-house or racecourse or any other premises or place to which the public has or is granted access, irrespective of whether access is granted against payment or is restricted to any category of persons or not.”

[21] Leaving aside whether or not the respondent was drunk and disorderly within the meaning of the section, his conduct took place in his own home which is not one of the places referred to in the subsection.  He therefore did not commit the offence of contravening s 59 (1) (d) of Act 10 of 2003 in the presence of Murray and Matthys and there was no merit in this ground of justification.

[22] RELIANCE ON S 205 OF THE CONSTITUTION AND S 40 (1) (q) OF THE ACT

In Mabona v Minister of Law and Order 1988 (2) SA 654 (SE) at 658E-I Jones J said the following:

“The test of whether a suspicion is reasonably entertained within the meaning of s 40(1)(b) is objective (S v Nel and Another 1980 (4) SA 28 (E) at 33H). Would a reasonable man in the second defendant's position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty.  The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

While this passage dealt with s 40 (1) (b) of the Act, it is in my view of equal application to s 40 (1) (q).

[23] The gist of Mrs. M.’s complaint to Murray and Matthys when they arrived at the house was that the respondent wanted to have sex with her but she did not want to because she was tired, and that he had taken the sim card from her cellphone.  The respondent displayed no violence towards her or the police while the police were present in the house.  As found by the magistrate the respondent could not have been arrested for theft of the sim card because he and Mrs. M. were married in community of property.  In any event suspicion of theft was not pleaded. 

[24] The question then is, given Mrs. M.’s complaint and the conduct of the respondent while the police were at the house, would a reasonable man in Matthys’ and Murray’s position, possessed of such information, reasonably have suspected that the respondent had committed an act of domestic violence which was an offence of which violence was an element?  I think the answer is no.  One must bear in mind that the requirement of s 40 (1) (q) is not just a suspicion that an act of domestic violence as contemplated in s 1 of the Domestic violence Act has been committed, but that the act of domestic violence must constitute an offence in respect of which violence is an element .  The violence referred to in the subsection must be physical violence.  If a suspicion that merely an act of domestic violence as contemplated in s 1 of the Domestic Violence Act had been committed was sufficient, there would be no need for the qualification that the act must constitute an offence of which violence is an element.  Bearing in mind that the purpose of arrest is to bring the arrested person before a court, there must be a suspicion that a legally recognised criminal offence has been committed.  “Domestic violence” is defined in s 1   of the Domestic Violence Act as follows:

‘domestic violence’ means –

(a)        physical abuse;

(b)        sexual abuse;

(c)        emotional, verbal and psychological abuse;

(d)        economic abuse;

(e)        intimidation;

(f)         harassment;

(g)        stalking;

(h)        damage to property;

(i)         entry into the complainant’s residence without consent, where the parties do not share the same residence; or

(j)         any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant;

[25] As was submitted on behalf of the respondent, the acts of domestic violence in that definition which constitute an offence in respect of which violence is an element are physical abuse and sexual abuse.  It was submitted on behalf of the appellant that there was information that emotional abuse had occurred.  An act of domestic violence in the form of emotional abuse would however not suffice for the purposes of s 40 (1) (q) of the Act.  Nor would it suffice for the purposes of s 3 of the Domestic Violence Act which provides:

“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 a complainant.”.

[26] The appellant sought support in the judgment in The Minister of Safety and Security v Bonisile John Katise [2013] ZASCA 111.  In this matter it was found on appeal that the arrest of the respondent was based on a reasonable suspicion that the respondent had committed acts of domestic violence against his wife and was accordingly lawful.  However the information available to the arresting officer was that the respondent had stabbed his wife and injured her, that he had a sword which he had hidden, and that he had threatened her with a spade.  Lewis JA was of the view that this information was sufficient to justify an arrest without a warrant under s 40 (1) (q) of the Act.  In my view this case does not assist the appellant, because the act of domestic violence committed by the respondent constituted an offence in respect of which violence was an element.

[27] Mrs. M.’s complaint that the respondent wanted to have sex with her but she did not agree because she was tired in my view falls far short of a complaint of an offence of which violence is an element.  The complaint did not mention that the respondent had used violence in seeking to overcome her refusal to have sex.  It is not clear if she told the police that she and the respondent had pushed each other, but even if she had, such information fell short of the commission of an offence of which violence is an element.  She did not elaborate on the exact nature of the pushing and the force, if any, involved.  The offence of attempted rape was introduced by Matthys when he testified that he asked Mrs. M. if she wanted to open a case of attempted rape, but Mrs M. could not have mentioned attempted rape because she herself testified that she did not say that the respondent wanted to rape her.  There was therefore no information given to Murray and Matthys that the respondent had committed an offence of which violence was an element, nor was any such offence committed in their presence.  In my view there were simply no grounds on which to form the requisite reasonable suspicion.  The magistrate was therefore correct in concluding that the arrest and subsequent detention were not justified.

[28] The appeal is dismissed with costs.

______________

J M ROBERSON

JUDGE OF THE HIGH COURT

 

I agree

 

_____________

RWN BROOKS

ACTING JUDGE OF THE HIGH COURT

 

Appearances:

For the Appellant:  Adv N J Sandi, instructed by Mvulana Attorneys, Grahamstown

 

For the Respondent:  Adv A Hattingh, instructed by NN Dullabh & Co Grahamstown

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