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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)         REPORTABLE:  NO

(2)         OF INTEREST TO OTHER JUDGES:  NO

(3)         REVISED:   yes

             1 December 2021

 

 

 

     

CASE NO: 72988/17

Hearing before Rabie J by way of Zoom conference.

In the matter between:

 

I.               KOOPMAN                                                                                                  Plaintiff

and

THE MINISTER OF POLICE                                                                                   Defendant

 

 

JUDGMENT

 

 

1.                The plaintiff instituted an action against the defendant for damages arising from an alleged unlawful arrest effected by a SAPS member on 4 March 2015 in the town of Kathu in the Northern Cape. 

2.                The plaintiff pleaded that she was wrongfully and or maliciously and or unlawfully arrested and detained.  It was further pleaded that the arrest was made without any reasonable suspicion and/or grounds for suspecting the plaintiff of committing a Schedule 1 offence in terms of Act 51 of 1977; alternatively, that the arresting officer did not entertain a suspicion based on reasonable grounds that the plaintiff had committed a Schedule 1 offence.  Furthermore, in the alternative, that the arresting officer did not exercise his discretion to arrest in good faith, rationally and not arbitrarily.  Furthermore that the officer arrested and detained the plaintiff for a cause other than to secure the plaintiff’s attendance at court as plaintiff was released without appearing in court, thus violating her constitutional rights contained in section 12 (1) (a) and (b) of the Constitution.  It was further pleaded that the officer failed to comply with the provisions of standing order G341 when he effected the arrest of the plaintiff.

3.                The plaintiff pleaded that she was arrested and detained at Kathu SAPS for three days together with her seven-month-old baby, where after she was released without appearing in court. 

4.                The defendant pleaded that the officer who arrested the plaintiff reasonably suspected the plaintiff of having committed an offence of assault which is an act of violence as contemplated in the Domestic Violence Act 116 of 1998 which entitles the said officer to arrest without a warrant.  It was further pleaded that the plaintiff’s detention was from 4 March 2015 to 6 March 2015 and that she was taken to court for appearance when the matter was withdrawn due to a mediation agreement having been concluded between the plaintiff and the complainant.

5.                Before referring to the evidence presented in this matter it is necessary to refer to the provisions of section 40 of the Criminal Procedure Act, Act 51 of 1977 (the CP Act) as well as the relevant provisions of the Domestic Violence Act.   Section 40 (1) (q) of the CP Act provides as follows:

“40      Arrest by police officers without warrant

(1)           A peace officer may without 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.”

6.                In section 1 of the Domestic Violence Act, “domestic violence” is defined, inter alia, 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 and well-being of the complainant.” 

7.                Section 1 of the Domestic Violence Act defines a “domestic relationship” as meaning a relationship between a complainant and a respondent in any of, inter alia, the following ways:

(a)  …

(b)  They (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other;

(c)  they are the parents of a child or persons who have or had parental responsibility for that child (whether or not at the same time);

(d)  …

(e)  They are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

(f)    they share or recently shared the same residence.”

8.                It is also apposite to refer to some of the Preamble to the Domestic Violence Act which reads as follows:

“RECOGNISING that domestic violence is a serious social evil; that there is a high incidence of domestic violence within South African society; that victims of domestic violence are among the most vulnerable members of society; the domestic violence takes on many forms; that acts of domestic violence may be committed in a wide variety of domestic relationships; and that the remedies currently available to the victims of domestic violence have proved to be ineffective;

…

IT IS THE PURPOSE of this Act to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act, and thereby to convey that the State is committed to the elimination of domestic violence.”

9.                I shall now refer to the evidence presented at the trial.  The first and only witness who gave evidence at the trial, was Detective Warrant Officer B.M.B. Fourie who testified on behalf of the defendant.  DWO Fourie has been in the SAPS for 27 years of which the last 17 years as a detective.  He testified that on Wednesday 4 March 2015 a docket was booked out to him as Detective.  The complainant was Mr Leon Coetzee who had laid a charge against the plaintiff for assault.  DWO Fourie read the statement of Mr Coetzee in the docket and made telephonic contact with him to get an overview of the matter.  Mr Coetzee indicated that he wanted to proceed with the matter. 

10.             It was common cause between the parties during the trial, and this was at all relevant times known to DWO Fourie, that Mr Coetzee and the plaintiff were not married but resided in the same house with their child of seven months and that they lived together as husband and wife. 

11.             In his statement to the police on Monday 2 March 2015 Mr Coetzee stated, inter alia, that on Sunday, 1 March 2015, at approximately 20:30 he and the plaintiff were at a tavern.  The child was with them.  At some point the plaintiff went to the toilet and when she failed to return after some time, he went to look for her.  He found the plaintiff on the street and he confronted her as to her whereabouts.  There was some argument between them during which the plaintiff became angry and grabbed him.  The child was part of this scuffle and the plaintiff was “rough” with the child.  The plaintiff gave the child to Mr Coetzee and while he was holding the child the plaintiff bit him on the stomach with her teeth.  The plaintiff left him and went towards the tavern but at the gate of the tavern she picked up a stone and hit him on his face with it while he was still holding the child.  Mr Coetzee went home with the child and decided to report the matter to the police.

12.             According to the statement of a police officer, T.M. Semogotsi, which was part of the docket, Mr Coetzee attended the police station at approximately 10:30 on Monday 2 March 2015.  He had a small wound on the left side of his neck and complained that his girlfriend was beating him.  The left side of his head was also swollen.  Underneath his T-shirt he presented with two wounds which he said were also caused by the complainant when she had bitten him.

13.             On Wednesday 4 March 2015 DWO Fourie attended the home of the parties and presented himself to the plaintiff.  Mr Coetzee was not at home.  He informed the plaintiff that he was investigating a charge of domestic violence which Mr Coetzee had laid against her.  DWO Fourie arrested the plaintiff and informed her of her constitutional rights.  Other adult persons were present and he asked the plaintiff to leave the child with them.  The plaintiff refused to do so whereupon he informed her that she could then take the child with her.  At the police station DWO Fourie gave the plaintiff a written Notice of Rights in terms of the Constitution and went through the document with her and explained her rights.  This was approximately 15:30 on 4 March 2015.

14.             On the next day, Thursday 5 March 2015, the plaintiff deposed to her warning statement which she signed.  She gave no version of events and merely indicated that she will talk in court.  According to DWO Fourie she refused to say anything to him when he informed her of his investigation and why he was arresting her.  She also did not deny the allegations which Mr Coetzee had made against her.

15.             DWO Fourie was asked regarding the issue of bail to which he testified that typically in instances of common assault which is not serious and did not result in injuries, a person would, depending on the other circumstances, normally be warned to appear in court.  A subpoena to appear in court would also be considered depending on the circumstances such as whether liquor was involved, where the incident occurred, et cetera.  He testified that in incidents of domestic violence the suspect would normally be arrested due to the peculiar nature of the offence but also depending on the circumstances.

16.             DWO Fourie testified that in the instant case he, inter alia, considered that the parties lived together, that they drank liquor in a tavern, that the plaintiff committed violence upon Mr Coetzee and that she did so while the child was with them.  He further testified that the arrest was in no way to punish the plaintiff but having regard to the circumstances he formed the view that they would probably be drinking again which would lead to a physical fight between them, and to make matters worse, the child would probably be with them.  He thus formed the view that on the probabilities the plaintiff would continue to commit the offence.

17.             DWO Fourie was further questioned on the issue of domestic violence related matters and the issue of the arrest of persons accused of such crimes.  He testified, inter alia, that one only has to look at the news media and marches of concerned citizens to realise the seriousness of this type of violence.  He testified that they, as the police, were also serious about the issue and that the public also expect of them to act appropriately. 

18.             He further testified that experience had taught him that matters of domestic violence are usually serious and that there is a probability that such instances would repeat itself and that they usually escalate to more serious forms of assault and even attempted murder or murder itself.

19.             What DWO Fourie conveyed, as I understood him, was that domestic violence constitutes a peculiar type of violent offence which is quite different from other matters such as common assault outside the family or domestic circle where parties are usually removed from one another after the assault and where the victim is ordinarily not subjected to the physical and psychological control of the attacker.  I agree with this view.  In the domestic violence scenario the attacker and the victim usually remain in the same close personal environment after the assault.  The victim remains the victim both physically and psychologically and more often than not, due to the domestic nature of their relationship, there is no ability to escape the situation.  Since the parties are usually out of the public eye, the attacks on the victim can continue at any time and without outside interference.  The intensity and nature of the attack depends on the will of the attacker and can endure for as long as the attacker wishes as there is usually no outside interference.  Another phenomenon of domestic violence is that the attacker often regards the matter as a private affair and would not tolerate any interference.  Interference, such as may be caused by the victim reporting and assault, may very well lead to immediate retaliation and often to an assault of a more serious nature. 

20.             A detective with years of experience of domestic violence can in my view not be faulted for forming the view in particular circumstances, and more particularly the circumstances of this case, that a high probability of repeat assaults, and assaults of a more serious nature, would follow unless the perpetrator is arrested and removed from the domestic scenario.  I cannot fault a police officer explaining himself as DWO Fourie did, for arresting the plaintiff in the present case. 

21.             During cross-examination it was put to DWO Fourie that he failed to exercise his discretion properly as to whether he should arrest and detain the complainant for the reason that there had been no evidence of any further assaults on Mr Coetzee after the assault of Sunday 1 March 2015.  This proposition is without any substance for it is simply wrong to suggest that an arrest and detention may only follow if there was a repeat assault within two or three days after the previous assault.  Such a notion ignores the very nature of and especially the peculiar dynamics of domestic abuse and domestic assault. 

22.             The fact that the attacker was a female person, is also of no relevance.  An attack by a female person may be as devastating and lethal as that of any male person.  In casu the plaintiff in fact picked up a stone and hit Mr Coetzee in the face with it.  This was despite the fact that he held their baby in his arms at the time.  The plaintiff’s attack was without restraint and could in fact have been lethal.  How she might act in future when triggered to do so, and at whom her attack would be directed, is not known.  It is also not known what would trigger the next attack.  The fact that Mr Coetzee had laid a charge could very well be such a trigger.  The result of such a new attack could very well be lethal.  It is clear that the plaintiff is prepared to use any weapon that happens to be at her disposal.  The fact that the plaintiff attacked Mr Coetzee in the manner which she did whilst the child was in very close proximity is another extremely disturbing factor.  Her anger, or loss of control, may have had serious consequences not only for Mr Coetzee but for the child as well.  The fact that the child’s presence and interests did not inhibit her attack in any manner or form surely increases the concern for everybody’s well-being should she simply be left in the domestic environment until the matter could be heard in court.  In all the circumstances I am satisfied that DWO Fourie acted rationally, correctly and with no ulterior motive when he arrested the plaintiff. 

23.             It was submitted in argument that the fact that the plaintiff was entitled to refuse to leave the child at home and that she should not have been arrested and detained whilst having such a small child.  This aspect was not pleaded by the plaintiff and she therefore cannot rely thereon at this point.  But even if she could, the submission can in my view not be sustained for the reasons mentioned above.  Women with babies may be arrested and detained if circumstances so require and there was no evidence whatsoever that either the plaintiff or the child would have suffered unnecessarily as a result thereof.  There was similarly no evidence that the necessary arrangements could not and in fact had not been made when the child had remained with her after her arrest.  DWO Fourie testified that in his view special arrangements would have been made.  The plaintiff did not testify and thus did not place any contrary evidence before this court. 

24.             DWO Fourie testified that he does not like to arrest a suspect especially when children are involved but in the present instance he had no other choice considering, inter alia, the drinking in the tavern and the presence of the child and the other factors already mentioned.  He considered that he had made the correct decision and stressed that his purpose was to bring the plaintiff before court and to protect Mr Coetzee from a recurrence of an assault upon him, and furthermore to leave it up to the court to consider the further incarceration or the release of the plaintiff.  The fact that the plaintiff refused to leave the child behind with the other adults present could not negate the circumstances already mentioned and result in the avoidance of her arrest.

25.             DWO Fourie testified that the fact that Mr Coetzee had decided to withdraw the complaint against the plaintiff on the day before the court hearing could not result in him releasing the plaintiff from custody.  Apart from the factors already referred to which supported his decision to arrest the plaintiff, he testified that his obligation was to take down the necessary statement and add same to the docket and leave it for the court to decide the issue.  

26.             In the present case DWO Fourie’s decision not to release the plaintiff immediately upon the withdrawal of the charges by Mr Coetzee, cannot be faulted.  A decision by a complainant to withdraw criminal charges cannot automatically lead to the cessation of criminal proceedings against the person who had allegedly perpetrated the offence.  Especially in the case of domestic violence it might in the circumstances of the particular case be a wise precaution to allow the court or the prosecutor to consider the reason why the complainant had withdrawn the charges and whether that should lead to the cessation of proceedings against the alleged perpetrator or not.  In the present case the assault upon Mr Coetzee was of a serious nature and would not have occurred if they had not been in a close personal relationship.  That relationship would continue to exist and the dangers inherent therein are proved by the fact that the prosecutor decided not to simply let the matter go but at the very least to insist on the mediation agreement.

27.             According to DWO Fourie the plaintiff could in any event not be taken to court on Thursday 5 March 2015, being the date on which the charges were withdrawn by Mr Coetzee, for the reason that the court did not sit in the town of Kathu on that day but in the distant town of Olifantshoek.  Both the Magistrate and the prosecutor were thus not in Kathu on that date.  The court sat in Kathu again the next day, Friday 6 May 2015.  After the plaintiff had been charged and processed on Thursday 5 March 2015, the complainant, Mr Coetzee withdrew the charges against the plaintiff and said in his statement that he does so in the interest of the child and because he had moved from the common home and was living alone. 

28.             On Friday 6 May 2015, with the assistance of the State Prosecutor and prior to the matter being called in open court, the plaintiff and Mr Coetzee signed an Informal Mediation Agreement.  The State Prosecutor also signed the agreement.  In terms of this agreement the plaintiff, inter alia, undertook never to assault Mr Coetzee again and acknowledged that she may be prosecuted again should she fail to comply with the agreement.  The plaintiff was then released although DWO Fourie was not certain whether the plaintiff was released in court or from the prosecutor’s office.

29.             These events thus vindicated DWO Fourie’s decision not to simply release the plaintiff but to wait for the matter to be placed in the hands of the prosecutor.  Instead of proceeding to court, the prosecutor obviously decided that the matter may be mediated between the parties.  The outcome of this mediation caused a restriction to be placed on the plaintiff and retained the rights of the State to prosecute the complainant in the future.  None of this would have been the case if DWO Fourie had simply allowed the plaintiff to be released upon the withdrawal of the charges against the plaintiff by Mr Coetzee.

30.             In summary the following might be said.  The plaintiff pleaded that she was wrongfully and/or maliciously and/or unlawfully arrested and detained and more specifically pleaded that the arrest was made without any reasonable suspicion and/or grounds for suspecting the plaintiff to have committed a Schedule 1 offence in terms of the CP Act.  In this regard I have already mentioned that there existed the statement by Mr Coetzee of how he had been physically assaulted, the statement by the police official confirming the injuries of Mr Coetzee and the telephone call by DWO Fourie to Mr Coetzee.  Furthermore, the plaintiff did not at any point deny the charges of her assault on Mr Coetzee.   There can also be no doubt that the offence committed by the plaintiff was one of a serious nature.  The fact that the plaintiff and Mr Coetzee were in a domestic relationship was also never in dispute.  There can consequently be no doubt as to the reasonableness of the suspicion of DWO Fourie that the plaintiff had committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act which constituted an offence in respect of which violence was an element.  In terms of section 40 (1) (q) of the Act, DWO Fourie was thus entitled to arrest the plaintiff without a warrant of arrest.

31.             Furthermore, on the evidence of DWO Fourie, there can be no doubt that he exercised his discretion to arrest in good faith, rationally and not arbitrarily.  His evidence that he intended to ensure the plaintiff’s attendance at court and also that he intended to protect Mr Coetzee from further assaults upon him, which he regarded as probable in the circumstances, came across as credible and reliable.  I consequently find that DWO Fourie did not exercise his discretion to arrest for a wrong reason or arbitrarily but that he did so properly and for rational reasons supported by the circumstances of this case.  This court can consequently not interfere with the discretion exercised by DWO Fourie.

32.             The submission on behalf of the plaintiff that DWO Fourie failed to make use of less invasive options to bring the plaintiff before court than an immediate detention of the plaintiff, cannot be upheld.  Firstly, this allegation was not pleaded by the plaintiff and can thus not be relied upon.  Secondly, such a requirement for a valid arrest in circumstances which are present in casu, have been rejected in the matter of Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA).  In that case the provisions of section 40 (1) (b) of the Act were in issue but in my view the findings in regard thereto should be applied to a matter such as the present where the provisions of section 40 (1) (q) find application.

33.             The submission on behalf of the plaintiff that DWO Fourie failed to comply with the provisions of standing order G341 when he effected the arrest of the plaintiff, cannot be supported.  This standing order clearly does not refer to situations of domestic violence and makes no provision for the special nuances inherent in situations of domestic violence. 

34.             I have already referred to the submission that DWO Fourie failed to consider the fact that the plaintiff refused to be arrested without her child.  This aspect was not pleaded by the plaintiff but in any event, according to the evidence, there appears to have been no reason why the plaintiff could not have been arrested and detained whilst the child remained with her.   

35.             In the result and having regard to all the facts before this court I find that the arrest and detention of the plaintiff was in no manner unlawful and consequently that the defendant is not liable for any damages which the plaintiff may have suffered as a result of her arrest and detention.

36.             As a result of my finding in respect of liability, nothing needs to be said about the issue of the quantum of the plaintiff’s claim.

37.             As far as costs are concerned both parties asked for costs to be awarded to them.  I’m consequently of the view that there is no reason why costs should not follow the event.

38.             In the result the following order is made:

1.    The Plaintiff’s claim is dismissed with costs.

 

C.P.  RABIE

JUDGE OF THE HIGH COURT

 

1 December 2021

 

 

Counsel for the Plaintiff:                 Adv TP Kruger SC

                                                         Adv H Worthington

Attorneys for Plaintiff:                    Gildenhuys Malatji Attorneys

                                                         jpearton@gminc.co.za

                                                         krugertp@law.co.za

 

Counsel for the Defendant:              Adv S Ogunrombi

Attorneys for Defendant:                 State Attorney

                                                         mmletsholo@justice.gov.za

                                                         Sunday@law.co.za

 

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