Minister of Police v Gxekwa (CA 122/2019) [2020] ZAECGHC 123 (27 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION

: GRAHAMSTOWN

CASE NO. : CA 122/2019

In the matter between:

MINISTER OF POLICE

Appellant

And

MONDE CROSBY GXEKWA

Respondent

APPEAL JUDGMENT

GRIFFITHS, J. :

Introduction

[1] This is an appeal against a judgment of the magistrate, Port Elizabeth, in terms of which she awarded the respondent damages in the total sum of R300 000 for wrongful arrest and detention. I shall, in the balance of this judgment, refer to the respondent as “the plaintiff” and the appellant as “the defendant”.

The issues

[2] As the matter unfolded (it being common cause that the plaintiff was indeed arrested by employees of the defendant acting within the course and scope of such employment), and as pleaded by the plaintiff, it appears that his claim for wrongful arrest and detention was based on the following:

1. The jurisdictional requirement as set out in section 8(4)(a) of the Domestic Violence Act[1] (“the Act”) requiring the provision of “an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any prohibition, condition, obligation or order contained in the protection order, to any member of the African

Police Service” (together with the warrant of arrest) was not fulfilled;

2. If indeed that subsection was satisfied, the defendant failed to establish on a balance of probabilities the existence of “reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order…” pursuant to section 8(4)(b) of the Act and ought, therefore, to have handed the plaintiff a written notice pursuant to the provisions of subsection (c) of section 8(4), rather than arrest him;

3. Failing this, the defendant’s employees ought in any event to have exercised their discretion by not arresting the plaintiff and to have employed less severe measures to secure his presence in court in the circumstances of this case;

4. Finally, and if all else failed, the defendant failed to justify the continued detention subsequent to the arrest for a period of some 4 days in accordance with what was stated in Van Rooyen v Minister of Police[2].

[3] It was the defendant’s case that the jurisdictional requirement referred to was indeed met, that such reasonable grounds existed requiring the arrest of the plaintiff, that such a discretion did not arise, and that the subsequent detention was justified pursuant to the provisions of the Criminal Procedure Act[3] (“CPA”).

The evidence

[4] At trial only the plaintiff testified in his case. For the defendant the arresting officer, one Somhlahlo, and the officer who took down the complainant’s statement, one Mbilana, testified. It became common cause that the plaintiff’s mother had previously had a protection order pursuant to the Act issued in her favour in terms of which the plaintiff was ordered “not to physically, verbally abuse applicant and (two other persons names mentioned) not to damage anything in the house (sic).” He was furthermore ordered not to enter his mother’s house.

[5] On the day before Christmas, 24 December 2018, the plaintiff had imbibed four beers during the late afternoon. Because he was aware that certain liquor had been stored in his mother’s garage, he went to her house to retrieve it. An altercation ensued between his mother (who was 70 years of age) and his brother involving such liquor and whether he was entitled to the key to the garage. A fight broke out between the two brothers and their mother intervened. According to her statement to the police, when she did so she fell to the ground. This aspect was denied by the plaintiff. Because of his continued aggression she called the police who arrived within half an hour. She explained the situation to them and Mbilana took a statement from her.

[6] The police officers referred to this statement as an affidavit, but it appears that it was “stamped” later at the police station. Such stamp appears to have been an official police stamp which was intended to evince compliance with the regulations made under the Justices of the Peace and Commissioners of Oaths Act[4] (“Commissioners Act”). The evidence was not clear as to precisely how this happened. However, it does appear that the oath was indeed administered to the complainant at the house as the oath is fully set out in Mbilana’s handwriting at the end of the statement, against which she was caused to sign in confirmation that she had understood the contents thereof, that she had no objection to taking the prescribed oath and that she considered it to be binding on her conscience. It seems that it was thereafter, at the police station, that a formal stamp was affixed thereto which was filled in by the same policeman who administered the oath, namely Mbilana.

[7] The plaintiff was thereafter arrested and detained for a period of some four days in unsavoury conditions which cause him psychological distress. Consequently, he underwent psychological treatment.

The judgment

[8] The magistrate, on this evidence, appears to have found against the defendant on various bases. At the outset of her reasoning, she indicated that in her view no “affidavit” in compliance with section 8(4)(a) of the Act was handed to the arresting police officer before the arrest. She appears further to have found that no reasonable grounds

existed to establish that the complainant “may suffer imminent harm as a result of the alleged breach of the protection order…”.

She also found that because Somhlahlo stated in evidence (in answer to a question as to why he did not rather give a written notice to appear in court to the plaintiff) that “due to the fact that the complainant had a warrant of arrest, it is not easy to give a written notice.”, this was, according to her judgment, a “clear indication that the arresting officer did not consider a written notice.

[9] These reasons appear to have compelled the magistrate to find that the defendant had not satisfied the onus resting on him to establish, on a balance of probabilities, a justification for the arrest.

The appeal

[10] The appellant has appealed against all these findings made by the magistrate as also against the quantum of damages awarded. In particular, it is submitted that the magistrate elevated form over substance in dealing both with the question of the affidavit and the question as to whether or not there existed reasonable grounds to believe that the complainant might suffer imminent harm.

The affidavit

[11] It appears to have become more and more commonplace, particularly in police stations, for commissioners of oaths to simply place an official stamp at the end of the “affidavit”, to fill in the necessary handwritten details and thereby to purportedly satisfy the requirements of the Commissioners Act and its regulations. As has been set out above, this is not sufficient. All designated commissioners of oaths are required to follow that Act and its regulations and, in particular, to administer the oath verbally to the deponent. It seems to me that this practice has led to the belief that the official stamp takes precedence over all else. In casu, it seems that the plaintiff, and the magistrate, have hung their coats on this deficiency.

[12] In the present matter, Mbilana did not simply rely on “the stamp”. Yes, it is so, that he regarded the stamp as being an important addition but he took the precaution of writing out the necessary details such as the oath and the fact that the complainant swore to the truth of the contents of the document, and had the complainant sign as against this part of the document to confirm that she had indeed taken the oath before him. None of this was considered by the magistrate. In my view, therefore, the document was an “affidavit” for the purposes of the Commissioners Act and, indeed, section 8 of the Act, and existed before the arrest of the plaintiff.

[13] Even if the document did not comply fully with the regulations, which I believe it did, in my view there was substantial compliance both with the Commissioners Act, and the Act itself in this regard[5].

Imminent harm?

[14] Unfortunately the magistrate has not dealt with the credibility of the witnesses who testified before her. Their evidence in many respects is mutually destructive. Having studied the transcript of such evidence, it does not seem that either the plaintiff or Somhlahlo came across as highly creditworthy. However, there was little cross examination of Mbilana who provided important corroboration for Somhlahlo particularly with regard to the aggressive manner exhibited by the plaintiff not only towards his mother, but also towards Somhlahlo himself.

[15] From what one can distil as either being common cause between the parties, or having been clearly established by the defendant, the complainant was in possession of a protection order which the plaintiff had transgressed both by entering her premises and by verbally abusing the complainant. There was also some indication of his causing damage within the house. The protection order together with other documentation, including the requisite warrant of arrest, were handed to the police on their arrival. Thereafter the affidavit was deposed to. There can be no doubt, and I understand there to be no contest in this regard, that this satisfied the provisions of section 8(4)(a) which, in turn, unlocked the provisions of subsections (b) and (c) thereof.

[16] It was then incumbent upon the police to consider all the facts from which they were to draw a conclusion as to whether there existed reasonable grounds to suspect that the complainant might suffer imminent harm as a result of these breaches of the protection order. If they concluded that such grounds indeed existed, they were obliged to arrest the plaintiff[6]; if not, they were to hand a written notice to him to appear in court in compliance with subsection (c).

[17] It is my view that the magistrate was wrong in concluding that the defendant had not established such grounds. Subsection 8(5) requires the police to consider in this regard the risk to the safety and health or well-being of the complainant; the seriousness of the conduct comprising the alleged breach of the protection order and the length of time since the breach occurred. In this matter, the complainant was clearly an elderly person and the plaintiff was under the influence of liquor. The plaintiff had deliberately flouted a protection order which, although he gave some pretence at having little knowledge of, he clearly was aware of. He was, even on his own evidence, aggressive towards both her and his brother, and there was indeed a fight between the siblings. During the course of the fight, on the plaintiff’s evidence, his brother struck him with a plank and, in terms of the affidavit made by the complainant, she was caused to fall to the ground. Added to all this, Mbilana confirmed Somhlahlo’s evidence to the effect that on their arrival the plaintiff had aggressively pointed at Somhlahlo instructing him to leave the premises. Mbilana also made it clear that the “old lady” was afraid as she had attempted to hide behind Somhlahlo in order to escape from the plaintiff.

[18] In my view, these factors, cumulatively, pointed clearly to reasonable grounds for suspecting that the complainant might suffer imminent harm had the plaintiff not been arrested. It should also be remembered that it was not solely the affidavit of the complainant which was to be relied on, all the circumstances found by the police to have existed on their arrival at the premises were to be taken into account. Somhlahlo’s decision to arrest in the circumstances cannot be challenged.

Discretion?

[19] Regarding issue number 3 referred to under the heading “The issues” above, it seems to me that this does not indeed arise. Subsection (b) clearly required an arrest of the plaintiff once the jurisdictional factors mentioned therein were found to have existed.

Van Rooyen?

[20] The plaintiff has argued that even if the arrest was lawful, the subsequent detention was not as the plaintiff protested his innocence and, put simply, the onus remained on the defendant to justify the four days’ worth of detention, as dealt with in Van Rooyen’s case.

[21] Although the arrest was made in terms of the provisions of the Act, the relevant provisions of the CPA kicked in thereafter. In my view, and in accordance with the relevant case law in this regard, there having been no particular extraneous circumstances pleaded by the plaintiff as to why, and indeed when, the plaintiff ought to have been released during the period of four days detention, the plaintiff cannot succeed in this regard[7].

[22] For these reasons it is my view that the appeal should succeed and the following order should accordingly issue:

1. The appeal succeeds with costs.

2. The order made by the magistrate on 15 February 2019 is set aside and substituted with the following:

“The claim is dismissed with costs”.

_______

R E GRIFFITHS

JUDGE OF THE HIGH COURT

VAN ZYL, DJP : I AGREE AND IT IS SO ORDERED

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

HEARD ON : 21 AUGUST 2020

DELIVERED ON : 27 OCTOBER 2020

[1] No 116 of 1998

[2] Unreported judgment ([ECDG]case no CA 332/2018 delivered on 26 March 2020).

[3] No 51 of 1977

[4] No 16 of 1963. The relevant regulations read as follows: ‘1.(1) An oath is administered by causing the deponent to utter the following words: “I swear that the contents of this declaration are true, so help me God”. (2) An affirmation is administered by causing the deponent to utter the following words: “I truly affirm that the contents of this declaration are true”.2.(1) Before a commissioner of oaths administers to any person the oath or affirmation prescribed by regulation 1 he shall ask the deponent— (a) whether he knows and understands the contents of the declaration; (b) whether he has any objection to taking the prescribed oath; and (c) whether he considers the prescribed oath to be binding on his conscience. (2) If the deponent acknowledges that he knows and understands the contents of the declaration and informs the commissioner of oaths that he does not have any objection to taking the oath and that he considers it to be binding on his conscience the commissioner of oaths shall administer the oath prescribed by regulation 1(1). (3) If the deponent acknowledges that he knows and understands the contents of the declaration but objects to taking the oath or informs the commissioner of oaths that he does not consider the oath to be binding on his conscience the commissioner of oaths shall administer the affirmation prescribed by regulation 1(2).3.(1) The deponent shall sign the declaration in the presence of the commissioner of oaths. (2) If the deponent cannot write he shall in the presence of the commissioner of oaths affix his mark at the foot of the declaration: Provided that if the commissioner of oaths has any doubt as to the deponent’s inability to write he shall require such inability to be certified at the foot of the declaration by some other trustworthy person.4.(1) Below the deponent’s signature or mark the commissioner of oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration. (2) The commissioner of oaths shall— (a) sign the declaration and print his full name and business address below his signature; and (b) state his designation and the area for which he holds his appointment or the office held by him if he holds his appointment ex officio.’

[4] No 16 of 1963. The relevant regulations read as follows:

‘1.(1) An oath is administered by causing the deponent to utter the following words: “I swear that the contents of this declaration are true, so help me God”.

(2) An affirmation is administered by causing the deponent to utter the following words: “I truly affirm that the contents of this declaration are true”.2.(1) Before a commissioner of oaths administers to any person the oath or affirmation prescribed by regulation 1 he shall ask the deponent—

(a) whether he knows and understands the contents of the declaration;

(b) whether he has any objection to taking the prescribed oath; and

(c) whether he considers the prescribed oath to be binding on his conscience.

(2) If the deponent acknowledges that he knows and understands the contents of the declaration and informs the commissioner of oaths that he does not have any objection to taking the oath and that he considers it to be binding on his conscience the commissioner of oaths shall administer the oath prescribed by regulation 1(1).

(3) If the deponent acknowledges that he knows and understands the contents of the declaration but objects to taking the oath or informs the commissioner of oaths that he does not consider the oath to be binding on his conscience the commissioner of oaths shall administer the affirmation prescribed by regulation 1(2).3.(1) The deponent shall sign the declaration in the presence of the commissioner of oaths.

(2) If the deponent cannot write he shall in the presence of the commissioner of oaths affix his mark at the foot of the declaration: Provided that if the commissioner of oaths has any doubt as to the deponent’s inability to write he shall require such inability to be certified at the foot of the declaration by some other trustworthy person.4.(1) Below the deponent’s signature or mark the commissioner of oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration.

(2) The commissioner of oaths shall—

(a) sign the declaration and print his full name and business address below his signature; and

(b) state his designation and the area for which he holds his appointment or the office held by him if he holds his appointment ex officio.’

[5] In this regard see: S v Munn 1973 (3) SA 734 (NC); S v Msibi 1974 (4) SA 821 (T); Dawood v Mohammed 1979 (2) SA 361 (D); Nkondo v Minister of Police and Another 1980 (2) SA 362 (O) at 365 A; Cape Sheet Metal Works (Pty) Ltd v JJ Calitz Builder (Pty) Ltd 1981 (1) SA 697 (O).

[6] The wording of subsection 8(4)(b) requires that that in the circumstances "… the member must forthwith arrest the respondent for allegedly committing the offence referred to in section 17(a)."

[7] See in this regard: Tembikile Jacobs v Minister of Safety and Security (unreported judgment delivered on 23 September 2013 under case no CA 327/2012, [ECDG]); Duncan v The Minister of Law and Order 1986 (2) SA 805 (A); Minister of Police v Justin Damons and Another (unreported appeal judgment delivered on 22 September 2020 under case no CA 29/2020 [ECDG] at paragraphs 15 – 20).