A teacher (62), arrested for allegedly contravening a domestic violence order, has successfully sued the Minister of Police for wrongful arrest and detention, says a GroundUp report.

Police officers who testified in the civil trial before Gauteng High Court (Johannesburg) 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 and the national instruction 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 said it was ‘normal practice’ to arrest anyone on the strength of a warrant authorised in terms of the Act.

The teacher was arrested on a Friday in September 2019 for contravening the protection order, which had been obtained by her brother in February 2016.

Her brother subsequently laid a complaint that she had sworn at him and threatened to kill him.

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 The charges were later withdrawn for lack of evidence.

Raubeheimer said the police officer had said he did not know the contents of the Act or the existence of the national instruction, notes the GroundUp report.

‘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. 

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,’ 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.

Full GroundUp report

Judgment