Naidoo v Minister of Police (20431/2014) [2015] ZASCA 152; [2015] 4 All SA 609 (SCA); 2016 (1) SACR 468 (SCA) (2 October 2015)

Key Facts

Issues

• The court addressed whether the police's conduct in breaching their duty of care under the Domestic Violence Act 116 of 1998 was actionable. The appellant argued that the respondents failed to comply with their legal obligations to assist her after she reported domestic violence, leading to secondary victimisation and exacerbating her trauma. The judgment highlighted that the police's failure to adhere to statutory duties and national instructions constituted negligence, as their conduct fell below the standard of a reasonable person under the circumstances.
• The court examined the lawfulness of the police officer's arrest of the appellant without a warrant under s 40(1)(b) and (q) of the Criminal Procedure Act. The judgment concluded that the arrest was unlawful because the officer failed to meet the jurisdictional requirements of the section, including the absence of reasonable suspicion of an offence involving violence. The officer's discretionary power to arrest was improperly exercised, as his purpose (to separate the parties until court) was not contemplated by law.
• The court determined that the appellant's secondary victimisation by the police—resulting from their failure to assist her under the Domestic Violence Act and her subsequent assault during detention—aggravated the contumelia element of the assault. The judgment upheld the claim for R10,000 in damages for the physical assault, emphasizing the compounding effect of the police's earlier negligence on her psychological harm.

Holdings

• The court ruled the appellant's arrest unlawful, as the police invoked s 40(1)(b) and (q) of the Criminal Procedure Act without meeting the required legal standards. The Minister was ordered to pay R70,000 for this unlawful arrest and detention.
• The court upheld the appeal, finding that the police breached their duty of care under the Domestic Violence Act by failing to assist the appellant, leading to her secondary victimisation and psychological harm. The Minister of Police was ordered to pay R200,000 for this breach.
• The court determined that the assault by a police officer during transport was actionable, with the Minister vicariously liable. The Minister was ordered to pay R10,000 for this assault.

Remedies

• The first defendant must pay R200,000 to the plaintiff in respect of claim one, which pertains to the breach of the legal duty owed by the South African Police Service (SAPS) to provide assistance under the Domestic Violence Act. This includes the failure to properly exercise arrest powers and the subsequent secondary victimisation of the plaintiff by the police.
• The first defendant must pay R10,000 in respect of claim three, which concerns the physical assault by a police officer (Mr Mampeile) when forcibly throwing the plaintiff into a police van, resulting in soft tissue injuries and psychological trauma.
• The first defendant is ordered to pay R70,000 in respect of claim two, which relates to the unlawful arrest and detention of the plaintiff by police officers who failed to meet the legal requirements for warrantless arrests under the Criminal Procedure Act.
• The first defendant shall pay interest at a rate of 15.5 per cent per annum on the aforementioned amounts (R200,000, R70,000, R10,000) from the date of service of the summons to the date of payment, as determined by the Prescribed Rate of Interest Act.

Monetary Damages

Legal Principles

• The court upheld the principle of vicarious liability, holding the Minister of Police responsible for the wrongful acts of the SAPS officers. This was based on the officers acting within the scope of their employment.
• The judgment reaffirmed that the burden of justifying an arrest lies with the arresting officer. The court found that Inspector Molefe failed to meet this burden by exercising his discretion arbitrarily and without legal justification.
• The court found that the police breached their statutory and constitutional duties by failing to assist the appellant, providing incorrect legal advice, and arbitrarily arresting her. This breach was linked to the police's failure to comply with National Instruction 7 of 1999 and the Act's requirements.
• The judgment established that the police's actions (failure to assist and unlawful arrest) directly caused the appellant's psychological harm and secondary victimisation. The court rejected arguments that prior trauma from domestic violence negated this causal link.
• The court criticized the trial judge's exclusion of hearsay evidence, noting that s 3(1)(b) of the Law of Evidence Amendment Act 45 of 1988 allows provisional admission of such evidence if the person upon whose credibility it depends testifies. This principle was key to the appeal's success.
• The court held that the police had a duty of care to assist the appellant under the Domestic Violence Act 116 of 1998 and that their failure to do so constituted negligence. The judgment emphasized that the police's statutory obligations required them to provide assistance, including medical care and protection, to victims of domestic violence.

Precedent Name

• Minister of Safety and Security v Seymour
• S v Baloyi (Minister of Justice & another Intervening)
• Minister of Safety and Security v Sekhotho & another
• Minister of Law and Order & others v Hurley & another
• Carmichele
• Minister of Safety and Security v Venter & others
• Zealand v Minister of Justice and Constitutional Development & another
• Distillers Korporasie (SA) Bpk v Kotze

Cited Statute

• Criminal Procedure Act 51 of 1977
• Domestic Violence Act 116 of 1998
• National Instruction 7 of 1999
• Prescribed Rate of Interest Act 55 of 1975

Judge Name

• Petse
• Maya ADP
• Lewis
• Mathopo
• Mbha

Passage Text

• The court awarded R200,000 for breach of duty, R70,000 for unlawful arrest/detention, and R10,000 for assault, emphasizing that 'money can never be more than a crude solatium for the deprivation' of liberty and dignity.
• The court held that police conduct in breaching rights under the Domestic Violence Act 116 of 1998 is actionable. Arrest without a warrant under s 40(1)(b) or (q) of the Criminal Procedure Act 51 of 1977 does not absolve police from liability if the section's requirements are not met.
• The evidence showed Molefe arrested the appellant arbitrarily to separate her from Naidoo, despite no valid legal basis. The court concluded his actions 'did not stay within the bounds of rationality' and violated her constitutional rights.