Enough is enough: The Supreme Court comes to the aid of the vulnerable women

Article_Vulnerable-Women-wideOn 2 October 2015, the Supreme Court of Appeal (SCA) handed down judgment in favour of Ms Naidoo (the appellant in the matter), holding the Minister of Police (among others) vicariously liable for the acts of certain members of the South African Police Service (SAPS). Naidoo v Minister of Police [2015] ZASCA 152 (2 October 2015)

The matter arose after the appellant was assaulted by her former husband in 2010.  After receiving medical treatment, she went to lay a charge of assault at her local police station.  The officer on duty advised her that she required a protection order prior to instituting criminal charges.  After discovering that this was in fact untrue, she returned to the police station in order to lay the charge.

Upon arrival, the officer in question refused to assist the appellant until such time as her husband arrived at the station.  After unsuccessfully attempting to persuade the appellant out of laying the charges, he persuaded the husband to lay counter charges, resulting in the subsequent arrest of both the appellant and her husband.

The following morning whilst the appellant was being taken to court, she was physically assaulted by a different police officer, who threw her into the back of the police van, causing severe swelling and bruising to the right side of her body.

Upon arrival at the court, the reciprocal charges were subsequently dropped by the respective parties in conjunction with the prosecutor.

The appellant subsequently instituted delictual action against the Minister of Police (among others) basing her claim on the following three grounds: first, that the officer in question negligently and wrongfully breached the legal duty imposed on him by the Domestic Violence Act 116 of 1998 (“the Act”); secondly, that the arrest and detention of the appellant was unlawful; and finally that the police officer unlawfully assaulted her.

The court a quo found that the Minister could not be held vicariously liable because the members of the SAPS who were said to have breached the legal duty owed to the appellant were not cited as defendants and therefore the court could not deal with the claim. Furthermore, one of the defendants had passed away prior to the commencement of the trial and it was therefore incumbent on the appellant to substitute his estate as a party in the action. Finally, it was averred that the arrest and detention was lawful for there had been a complaint of domestic violence laid against the appellant by her former husband. The appellant’s claim was thus dismissed.

On appeal, in considering the first ground, the SCA found that the fact that the officer in question had prevented the appellant from laying a charge, coerced her husband into laying a counter-charge and then subsequently arrested both parties, clearly constituted a breach of the statutory duty imposed by the Act. Furthermore, the Court found that the appellant had suffered psychological harm as a result of the police officer’s actions, highlighting that “the emotional harm, humiliation and trauma that the appellant was subjected to is the antithesis of what the Act … seeks to accomplish.” The first ground was accordingly upheld.

In upholding the second ground, the court held that based on the evidence on hand, it was apparent that the officer had exercised his discretion to arrest the appellant arbitrarily and for an improper purpose. The arrest was therefore held to be unreasonable.

In respect of the third ground, the SCA indicated that the statement in question was made with regards to the domestic violence charges the appellant withdrew against her husband, and not the delictual charges she subsequently instituted against the police officers. Therefore, the statement could not constitute a waiver of the appellant’s right to institute delictual action, as it related to a different party.

Furthermore, the mere fact that the officer who had assaulted her had passed away prior to the commencement of the trial, and that his estate was not joined, was of no consequence. Accordingly, the decision of the court a quo was overruled and thus the appellant’s third claim was upheld.

The appeal was accordingly upheld on all three grounds, and the Minister was ordered to pay the appellant R280,000.00 plus interest at 15.5% per annum.

Note: The original of this article appears on Ashersons Attorneys website, here.