Naidoo v Minister of Police

The appellant, Ms Charmaine Naidoo, was severely assaulted by her former husband on 12 April 2010. Two days later she went to the Lenasia South Police Station to lay a charge under the Domestic Violence Act 116 of 1998. Police officers wrongly advised her that she first needed a protection order and failed to assist her. Inspector Molefe summoned her former husband to the station, encouraged them to resolve the matter, and when this failed, facilitated cross-charges of assault. Ms Naidoo was arrested without a warrant, detained overnight, and while being transported to court the following day she was assaulted by a police officer who forcibly threw her into a police van. The charges against her were withdrawn in court. She suffered physical injuries and developed chronic post-traumatic stress disorder, which experts linked primarily to her treatment by the police. She sued the Minister of Police and SAPS members for damages based on unlawful arrest and detention, assault, and negligent breach of statutory and constitutional duties owed to victims of domestic violence. The High Court dismissed her claims, but she appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the High Court was set aside and substituted with an order directing the Minister of Police to pay the appellant damages of R200 000 (claim one), R70 000 (claim two), and R10 000 (claim three), together with interest at 15.5% per annum from date of service of summons to date of payment. No order as to costs was made.

This case is a leading authority on police liability for failures in responding to domestic violence complaints. It affirms that breaches of duties imposed by the Domestic Violence Act and police National Instructions are actionable in delict, and that unlawful arrest and secondary victimisation of domestic violence complainants attract substantial damages. The judgment reinforces constitutional obligations on the police to protect victims of gender-based violence and clarifies that arrest powers under the Criminal Procedure Act must be exercised lawfully and rationally.