Domestic Violence: When can SAPS arrest?

domesticviolenceIf you, a colleague, friend or relative are a victim of “domestic violence” (not just physical harm, the term also includes emotional, verbal and psychological abuse) turn to our law and to SAPS for help.
Firstly, the Domestic Violence Act provides quick, easy and effective protection from abusers.  You can apply for a protection order at your local magistrate’s court, and that will be accompanied by a warrant authorising arrest of the perpetrator in the event of a breach of the order.  Note that this isn’t the same as laying a criminal charge, which you can do as well if necessary.

Secondly, per a recent SCA (Supreme Court of Appeal) decision, the police can in appropriate cases lawfully arrest an offender even without a warrant, and even if no protection order has actually been obtained.

Abused wife, police 1: Abusive husband 0

The facts were these –

  • A wife, whose husband had a history of assaulting and verbally abusing her when drunk, was advised by the police to “open up a domestic violence” case.
  • She went to the magistrate’s court and obtained a provisional protection order restraining the husband from assaulting or threatening to assault her.  It seems that for whatever reason no final order was thereafter obtained.
  • SAPS officers arrested the husband after he arrived home drunk and abused and assaulted his wife (firstly by trying to pour a pot of presumably boiling water over her head, thereafter by stabbing her with a “sword” and by threatening her with a spade) in front of her 11 year old child and a friend.
  • The husband was detained for 10 days (on the authority of a magistrate) on a charge of contravening a protection order.
  • When that charge was dropped, he sued the police for unlawful arrest.

Sometimes, no warrant needed

The husband was awarded damages of R200,000 for unlawful arrest, but this High Court order was set aside on appeal, the SCA finding that the arrest was perfectly lawful in the circumstances.  Specifically, held the Court, our law authorises arrest without warrant, with or without a protection order in place, of anyone “reasonably suspected of having committed an act of domestic violence……which constitutes an offence in respect of which violence is an element.”  Violence clearly being “an element” here, no warrant was needed for the arrest to be lawful.

“E-tags” to monitor offenders?

A final thought – ask about the recently-announced “GPS electronic monitoring device” which, strapped to an offender as a non-removable bracelet, is said to alert victims via a receiver “when the perpetrator comes within a set distance of them.” The receiver reportedly gives the victim “a panic button that can be used to alert officials to impending danger”.  Presumably this “e-tag” system will be used mostly, perhaps exclusively, for repeat offenders.  And whether it will be widely available (and if so, when) isn’t clear – but it can’t hurt to ask.

Ashersons Attorneys

Ashersons Attorneys

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