Minister of Police must pay damages to teacher for unlawful arrest

• A teacher arrested for domestic violence has successfully sued the Minister of Police.
• Evidence during the trial was that the police were unaware of the law and a national instruction, which gives them discretion in dealing with domestic violence arrests.
• They said it was “normal practice” to arrest anyone accused of breaching protection orders, even if there was no threat of imminent danger to the complainant.
• The teacher, who spent a weekend in custody, will now seek damages from the minister either through negotiation or a further trial.

A teacher was arrested for allegedly contravening a domestic violence order. At the time she was looking after her grandchild. She was held in custody over a weekend.

The teacher has successfully sued the Minister of Police for wrongful arrest and detention.

Police officers, who testified in the civil trial before Johannesburg High Court Acting Judge Ettian Raubenheimer, said they were completely unaware that the Domestic Violence Act and a SAPS national instruction gave them discretion when dealing with arrests for breaches of protection orders.

Both the act (which came into force in 1998) and the national instruction (dated 1999) specify that an arrest is only permitted if there are reasonable grounds to believe that the complainant would suffer imminent harm. Absent this, the alleged offender must be given a written notice to appear in court.

But the police officers, who were stationed at Randburg, said it was “normal practice” to arrest anyone on the strength of a warrant authorised in terms of the act.

The 62-year-old teacher, who is identified only by her initials in the recent judgment, was arrested on a Friday in September 2019 for contravening the protection order, which had been obtained by her brother, a former soldier, in February 2016.

She was kept in cells until the following Monday when she was released on bail. The charges were later withdrawn for lack of evidence.

The teacher, in her evidence, said she had been looking after her grandchild that morning at her home. Her brother lived on the property, but she pays for the bond and utility accounts.

She was approached by the arresting officer Constable Ntsoelengoe and two others.

Ntsoelengoe told her that her brother had laid a complaint that she had sworn at him and threatened to kill him.

She denied this. She called her daughter to fetch the child, and she was then arrested, detained for the weekend and denied access to an attorney.

She said there was conflict between her and her brother, who was unemployed and had substance abuse issues, over who owned the house, following the death of their mother.

She said she had not threatened to kill him. He had no reason to be afraid of her as he was a “man of large stature and a former soldier in the liberation struggle”.

Her brother had also continued to live on the property after he laid the complaint — that the protection order had been breached — at the police station three days before her arrest.

In his evidence, Constable Ntsoelengoe said he had only received very basic training on domestic violence, even though one of his duties was executing domestic violence arrest warrants “about five or ten per month”.

Judge Raubeheimer said the police officer had said he did not know the contents of the act or the existence of the national instruction.

“According to him, there were no alternative options than to arrest her and detain her until she could be brought to court,” the judge said.

Warrant Officer Mbekwe, who works in the community centre at the police station, said he too was not aware of the content of the act or the national instruction.

Arrests were “just the way things were done” at the police station.

Judge Raubenheimer said the law was clear: a mere breach of a protection order was insufficient to justify an arrest.

Because the warrant was issued simultaneously with the protection order, and due to the variety of conduct which could constitute domestic violence, the act only allowed for an arrest where there was real danger that the complainant would be at risk of harm.

“The arresting officer had a responsibility to conduct an investigation. He testified that he was not aware of the provisions of the act,” Judge Raubenheimer said.

He was also not aware that the brother had returned home after laying the complaint, and there had been no incidents in the three days until the teacher was arrested.

He had also not taken into account that the protection order had been issued in February 2016 and there had been no other incidents reported since then.

“The arrest and detention was consequently unlawful,” the judge said, ruling that the minister was liable to pay the teacher damages.

The amount will be determined either through negotiation or at a further trial.

Published originally on GroundUp.

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