Victims of family violence entitled to state protection

Dlanjwa v The Minister of Safety and Security [2015] ZASCA 147

The Supreme Court of Appeal of South Africa (SCASA) found that the Plaintiff, who was shot by her husband in her family home, was entitled to damages against the Minister of Safety Security and the Station Commander of Ngangelizwe Police Station (Mthantha) for their failure to properly investigate and act on the Plaintiff’s complaints that her husband was abusing her and owned a gun that he had repeatedly used to threaten her with violence and death.

Facts

The case was an appeal from the full court of the Eastern Cape Local Division (Full Court). The Plaintiff brought the action as a result of serious injuries she sustained on 19 April 2006 when her deceased husband, a local police officer (the Deceased) beat and shot her and then himself in their family home.

The Plaintiff had previously reported incidents of violence against her by the Deceased to the local police station in February and March 2006. The Plaintiff said she also reported that the Deceased possessed a handgun that belonged to the local police station, and that he had repeatedly pointed the gun at her and threatened to kill her and himself.

After the second incident in March the Plaintiff obtained a Protection Order against the Deceased, on the advice of the police and with the assistance of the local Magistrate’s office. The Plaintiff provided evidence that at the time she wanted to protect the Deceased from being arrested, and simply wanted the police to confiscate his weapon. There was a brief lull in the violence that was then broken by the shooting incident that gave rise to this case.

The Defendants argued that the police were not informed about the gun; the Deceased’s death threats to the Plaintiff; or of the level of violence involved in the February and March assaults. They argued that the Plaintiff’s evidence was not credible, on the basis of her confusion about dates and certain details relating to the earlier incidents. The Defendants said that the Plaintiff’s statement that she had reported the gun was inconsistent with her evidence that she wanted to protect the Deceased.

The trial judge at first instance found in favour of the Plaintiff. The trial judge considered that the Plaintiff’s evidence, although contradictory on some details, was generally credible and provided a probable account of the events leading to the shooting. The trial judge considered the Defendant’s account to be unsupported by documentary evidence. The trial judge found that the Police had failed to take requisite steps to protect the Plaintiff despite their knowledge of her situation and the Protection Order she obtained.

The Full Court reversed the trial judge’s decision and found that the Plaintiff had not provided a credible account of the events leading to the shooting, and that in fact she had not reported to the police the Deceased’s possession of a gun, or his threats to kill her. In particular, the Plaintiff’s evidence that she had reported the gun was found to be inconsistent with her stated desire to “protect” the Deceased from being arrested.

The Full Court also ruled that the Plaintiff would not have accepted the police’s failure to disarm the Deceased and would have followed it up with more “senior authorities”. Her failure to do so indicated that she had not in fact reported the gun. Finally the Full Court found that the Plaintiff had not filled in the relevant section of the Protection Order application referring to weapons, which again indicated that she did not intend to report the weapon.

Decision

The SCASA overturned the Full Court’s decision and restored the decision of the trial judge. It found that the contradictions in the Plaintiff’s evidence were “more apparent than real”, were largely related to the timing of certain incidents and became apparent after very gruelling cross-examination. These contradictions were considered “understandable” in the circumstances. The SCASA also concluded that the Plaintiff’s failure to follow up her complaint with more senior authorities should not be held against her, as this is the proper role of the police, not the Plaintiff.

The SCASA also concluded that the Plaintiff’s desire to “protect” the Deceased from arrest was consistent with her reporting of the abuse, particularly in the context of her seeking a Protection Order. The Full Court’s reliance on the Plaintiff’s failure to fill out the “weapons” section of the Protection Order was criticised as the evidence clearly showed that the application was filled out by the Magistrate’s office, so the failure to fill it out properly could not be used as the basis for an inference against the Plaintiff.

The SCASA found that the Full Court had overlooked flaws in the Defendant’s account of events. In particular, the police who provided evidence were doing so many years after the event, and had failed to keep any supporting written documentation. One policeman was simply relying on a colleague’s recollection of events, and his evidence was therefore entirely hearsay. The evidence that the Plaintiff had not reported the gun and the threats was implausible, particularly as the police had provided her an escort home and had encouraged her to seek a Protection Order.

Ultimately SCASA determined that the Plaintiff’s account, although not without flaws, provided the more plausible explanation of events. SCASA therefore concluded that the Police had failed to adequately protect the Plaintiff from the Deceased, despite knowing the risk she faced. This failure had a causal connection to the Plaintiff’s injuries.               

Importantly the SCASA found that the right to freedom and security of the person in the Constitution of South Africa and the South African Police Service Act “impose a positive obligation on the police to ensure the safety and security and protect the members of the public in general and women and children in particular from violent crime.” This obligation founded the duty the Defendants owed to the Plaintiff, and also indicated that the Full Court was mistaken in imposing the onus on the Plaintiff to ensure her own protection.

Commentary

The SCASA’s decision clearly establishes that under South African Law a victim of family violence is entitled to protection by the State. This right imposes an obligation on the police and other protective services to properly record and investigate allegations of family violence. The SCASA also suggests that confusion or inability to recall details should not necessarily be taken as evidence of a lack of credibility from a witness, especially if the witness has undergone a traumatic experience.

The Plaintiff’s experiences, and the differences in treatment of this case between the Full Court and the SCASA, could provide some useful guidance as Australia seeks to address its problems with family violence and how to ensure victims are protected.

The full text of the decision can be found here.

Alex Maschmedt is a solicitor at King & Wood Mallesons