Minister found liable for wrongful conduct of police towards domestic violence victim

Charmaine Naidoo v Minister of Police (20431/2014) [2015] ZASCA152 (2 October 2015)

In the recent decision the Supreme Court of Appeal of South Africa overturned a decision of the High Court of Johannesburg to hold that the Minister of Police was vicariously liable for the wrongful conduct of certain members of the South African Police Service towards a domestic violence victim.

Facts

In 2010, Charmaine Naidoo (the “Appellant”) was assaulted and seriously injured by her former husband, Charlton Naidoo (“Naidoo”). Following the incident, the Appellant went to her local police station to lay a charge against Naidoo under the Domestic Violence Act 116 of 1998 (“Act”). The SAPS member that attended to the Appellant furnished her with incorrect advice (by telling her she was required to obtain a protection order from the Magistrates’ Court before SAPS could assist her).

After visiting the Magistrates’ Court and learning that this was not the case, the Appellant returned to the police station. However, SAPS refused to assist her until Naidoo had been consulted. Naidoo was called to the station and the relevant SAPS members attempted to convince the Appellant that she should resolve the dispute amicably. They also advised that if she insisted on pursuing the charge, Naidoo would lay a counter charge, and they would both be arrested. The Appellant and Naidoo were accordingly detained overnight.

While being detained, the Appellant was violently assaulted by another SAPS member causing her to suffer shock, soft tissue injuries and severe swelling. She also suffered psychological harm as a result of the assault.

The primary issue on appeal was whether the Minister should be held liable for the conduct of the relevant SAPS members and ordered to pay compensation to the Appellant on the grounds that:

• the SAPS members had wrongfully and negligently failed to comply with the requirements under the Act (and the Regulations and National Instructions promulgated under the Act), which comprehensively detail the manner in which victims of domestic violence must be treated;
• the Appellant had been unlawfully arrested and detained; and
• the Appellant was assaulted by a SAPS member. 

Decision

Statutory duty to provide assistance

The Court held that the Act, the Regulations and the National Instructions imposed a statutory duty on SAPS to render assistance to the Appellant (as a victim of domestic violence). In the Court’s view, section 2 of the Act and paragraph 7 of the National instructions made it clear that upon discovering an incident of domestic violence, SAPS must provide real assistance to the victim rather than merely ‘referring them to counselling or conciliation services.’

Having established the existence of a statutory duty, the Court then went on to consider the question of whether it had been negligently breached. The question to be answered was therefore whether a reasonable person in the position of the members of SAPS would have taken precautions to guard against the harm suffered by the Appellant. In determining this issue, particular regard was given to:

• the nature of the Appellant’s complaint;
• the wide ranging remedies accorded to the victim under the Act; and
• the comprehensive and explicit directives given to members of SAPS under the Regulations and the National Instructions.

The Court held that the relevant SAPS members had breached their statutory duty because:

• they sought to “shirk [their] responsibility by directing the Appellant to seek assistance by other means”, namely by obtaining a protection order at the Magistrates’ Court;
• they provided the Appellant with incorrect information (by telling her that a protection order was a prerequisite for SAPS assistance);
• even when the Appellant returned to the police station from the Magistrates’ Court, the relevant SAPS members did not assist her immediately (they waited until Naidoo arrived at the police station);
• they suggested that the Appellant should resolve the dispute with Naidoo amicably; and
• they encouraged Naidoo to lay a counter charge against the Appellant.

Unlawful arrest and detention

Additionally, the Court held that SAPS had unlawfully arrested and detained the Appellant. In doing so, it rejected the Respondent’s argument that the arrest was lawfully executed under section 40(1)(b) and (q) of the Criminal Procedure Act 51 of 1977 on the basis that the relevant SAPS member reasonably suspected the Appellant had herself committed an act of domestic violence.  

The Court emphasised that the evidence of one of the investigating SAPS members was critical. Under cross-examination, he stated that he had arrested the Appellant simply because ‘he could not allow [the Appellant and Naidoo] to go back under the same roof again’ and that ‘the decision as to who should be allowed to go back to the house should be made by the Court’. This piece of evidence ineluctably lead to the conclusion that the SAPS member had either exercised his discretion to arrest arbitrarily or for an improper purpose, namely to separate the Appellant from Naidoo until she was brought to Court the next day.

It was also significant that the relevant SAPS members had encouraged Naidoo to lay a counter charge against the Appellant and that contrary to the Act, the Regulations and the National Instructions, they had insidiously advised her to settle the matter with Naidoo under threat that she would be arrested if the matter did not settle. 

Assault

Finally, the Court held that the Respondent was vicariously liable for the assault committed against the Appellant while being transported to Court by another SAPS member. The Court was not persuaded by the Respondent’s arguments that the Appellant’s claim was not entitled to succeed because:

• the member of SAPS responsible for the assault had passed away by the time that the matter had come to trial, and she had failed to join his estate; and
• she had signed a statement withdrawing the charges against Naidoo which amounted to a waiver of her claim against the respondent.

Accordingly, the Minister was ordered to pay an amount of R 280,000 to the Appellant.

Commentary

The decision provides important clarity surrounding the obligations of police when dealing with victims of domestic violence. Importantly, the decision makes it clear that police have a positive duty to provide real assistance to victims of domestic violence to ensure that they are afforded the maximum protection from domestic abuse that the law can provide. In carrying out that duty, at the very least, police must provide victims with accurate information and respond to their complaints in a timely manner.

The full text of the decision can be found here.

Madeleine McIntosh is a Law Graduate at King & Wood Mallesons.