Legal Talk

Imagine being assaulted by your spouse so severely that you require hospitazation and when you eventually go to the police station to report the crime, you are not only turned away but also later put into police custody yourself. This is what happened to a woman who was the victim of domestic abuse. The facts of this sad case briefly were the following. In 2010 the woman was badly assaulted by her husband, (from whom she has since divorced) leaving her unconscious. The woman needed medical treatment and was taken to hospital by paramedics where she stayed in hospital overnight. The next day the woman and her sister went to the Lenasia South Police Station to report the assault. However the Police officer with whom the women spoke to informed them that she had to go the magistrates' court and get a protection order before the police could assist her. When the woman went the magistrates' court, she was told that she did not need a protection order before a criminal charge at the Police Station could be laid. What followed thereafter was tragic and shocking. The police then arrested the woman herself on a charge of assault brought against her by the husband and was forced to spend the night in the police custody. The next day whilst on her way to Vereeniging Magistrates' Court, she was assaulted by a police officer who threw her into the back of a police van. She suffered physical injury comprising soft tissue injuries in the right arm and right leg with severe swelling. All charges against her were withdrawn at the Magistrates Court. The woman took the matter to the High Court and sued the Minister of Police and certain members of the South African Police Service for damages saying that the SAPS wrongfully and negligently failed to comply with their legal duties as well as unlawful arrest and detention and assault whilst in police custody. The High Court however dismissed the woman's claim. Undeterred the woman then took the matter to the Supreme Court of Appeal. Five years later on 2 October 2015, the Supreme Court of Appeal ("SCA") in Bloemfontein ordered the South African Police to pay damages in total of the sum of R280 000,00 based on negligence as well as wrongful arrest and detention In delivering its judgment in the matter, the SCA held that in domestic violence matters, the SAPS are required in terms of the Domestic Violence Act to 'render such assistance as may be required to the complainant, including assisting or making arrangements for the complainant to find a suitable shelter and to obtain medical treatment and that according to the National Instruction the Police were not allowed to shirk from this responsibility by directing the woman to seek other means as one of the Police Officer's sought to do'. The SCA found that some of the acts of the police were deliberate, whilst others, such as the giving of incorrect advice and failing to comply with the duties imposed on members of the SAPS, were not. The SCA used provisions of the Bill of Rights as found in Constitution of South Africa, as well a

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