It's all very well for the government to fuss about whether courts are implementing the constitution properly. But what are government departments doing to make sure their staff understand and implement the law, particularly the constitution and bill of rights?

Officials of the Department of Home Affairs, for example, appear to believe they may ignore court orders when it comes to people who, in their view, should not be allowed into SA. Now the high court in Cape Town is trying to ensure that the department trains its officers properly so that they understand the law – and their obligations to obey court orders.

This week an unrelated judgment against the Minister of Safety and Security became available, showing that a key law developed to guard against domestic violence is still not understood and implemented properly by police.

The judge, Mohini Murugasen, of the high court in Durban, called it a matter of “great concern” that despite many years since the law had been promulgated in 1999, police who are supposed to carry out the provisions of the law are still not being trained how to do the job.

She was dealing with a civil claim brought by Musawenkosi Khanyile against the minister and a police inspector, Muzi Gumede, for wrongful arrest and detention. Khanyile claims more than R165 000 but the court first had to establish whether the police were in fact liable.

Khanyile’s girlfriend was granted an interim protection order in Durban’s Magistrate’s Court on January 5, 2007, that said he was not to threaten, harass emotionally or physically abuse her.

As usual in such cases, a warrant for his arrest was authorised but its execution was suspended. This makes it easier for the warrant to be invoked and used to arrest a partner who later infringes such an order.

Three weeks after she had obtained the order she went to Durban central police station. She gave Gumede a copy of the warrant, complained that Khanyile had breached the order and asked that he be arrested.

She did not give Gumede a copy of the interim protection order – she had forgotten to bring it but arranged to deliver it later – nor did she make an affidavit about what led to her asking that the warrant be |executed.

Khanyile was nevertheless arrested that afternoon, and released on bail the following evening. When the matter came to court, however, the state declined to prosecute, saying Khanyile’s behaviour did not infringe the protection order.  

When Khanyile later sued, Judge Murugasen had to decide whether his arrest was lawful given the defects in procedure.

How could Gumede have had reasonable grounds to suspect the girlfriend would suffer “imminent harm” as a result of Khanyile’s alleged breach of the order when Gumede did not have a copy of the order nor an affidavit by her explaining how he had disobeyed the order? Without this basic information could Gumede have acted “as a prudent and reasonable” police officer in making the arrest?

Judge Murugasen agreed that the police officer should have had the relevant documents before making the arrest. But why were Gumede and others in his position still not being given training about how to deal with protection orders and avoid such basic mistakes, she asked.

Gumede made what the judge called a very valid comment: police were frequently criticised for not acting quickly in matters of domestic violence. Quoting a recent case, she said Gumede was correct that because police failed to act urgently, women became victims of serious acts of violence despite obtaining protection orders.

Untrained police weren’t able to appreciate the role they were required to play or to balance the rights of the parties involved. This also affected the interests of the public who were at risk of unlawful arrest and detention as in this case. In addition, “public resources are depleted as a result of litigation” following unlawful police conduct.

Khanyile sued the minister and Gumede jointly, but the judge said because the police officer had not been trained in domestic violence laws it would be unfair to order that he should contribute towards whatever compensation Khanyile is awarded in a later hearing.

As the judge pointed out, it’s unacceptable that police aren’t trained in how to deal with this law. All those women needing protection against violent partners are let down by this failure.

And in addition, funds that could be used elsewhere are gobbled up in litigation when the police make mistakes.

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