How one divorce became national issue

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new divorce sxc sxc.hu Researchers blamed the spread of family breakdown on the ease of divorce and the lack of shame felt by couples who separate.

Although the police messed up, you have to be mad at M’s mean-spirited, abusive husband, says Carmel Rickard.

You could read it as just another story of police incompetence. But it’s also about how one couple’s acrimonious divorce has financial implications for every single South African.

It’s the case of “M” against the Minister of Police, a matter heard in the North Gauteng High Court in Pretoria; because the parties were involved in divorce proceedings we aren’t naming the woman concerned.

M and her husband were involved in what the high court called “great matrimonial difficulties”, but as they tried to resolve their relationship and how to end it, they continued to share a house.

One of the contentious issues was how to divide their joint estate when their marriage ended.

Finally, said the court in a footnote, the husband got the business and a fleet of taxis, while M got the house and its contents.

But agreement over that division lay in the future.

While they were still in dispute over how to deal with their joint estate, M took away some household goods. In response, her then-husband laid a charge of housebreaking and theft.

Arrested by the police, she was detained overnight.

Then sense prevailed: she was released the next day and all charges were withdrawn.

Since then all the parties, including the police, have agreed that her arrest was unlawful.

Because of that agreement the success of her claim against the police was a done deal, and the only question remaining was how much the police would have to pay in damages.

As the court put it, the former husband’s charges against her – on both a legal and a factual level – were “entirely baseless”.

M was a teacher at a primary school that had about 450 pupils and 13 teachers.

On the day the acrimony of their divorce burst into her professional life, she was busy in her classroom as usual.

Then came the call: she was needed in the principal’s office. The police waiting there arrested her for “housebreaking and theft”.

The exact number of police officers involved was a matter of dispute, but after hearing evidence the judge concluded: “I am… satisfied on the probabilities that the police arrived at the school in considerable numbers and with three vehicles.”

Can you imagine M’s feelings when she heard she was under arrest for housebreaking and theft, and was told to follow the police in her own car to the police station?

And, once the initial police paperwork was concluded, how she felt to be taken, in a police vehicle, to the large town nearby where she was detained overnight in a cell at the local police station?

Certainly the court had some understanding that it was an extremely bad experience for her.

“She struck me as a refined lady who suffered greatly as a consequence of her ordeal,” wrote the judge, detailing the prison conditions that would have distressed her.

A couple of weeks later she consulted a psychologist who diagnosed depression, which the judge accepted had been caused by several factors, including the breakup of her marriage.

The arrest, “which she realised had been engineered by the father of her children, had aggravated her feeling of depression”.

So what would be a fair award for the damages she suffered?

The judge considered a number of reported cases dealing with the damages that should be awarded when the unlawful detention was for “a relatively short period”.

There was no shortage of such cases, said the judge. In fact they were “regrettably very prevalent in this division (of the court)”.

While the police said they had no malicious motive and that they hadn’t treated her badly, the court took into account that “any unlawful arrest and detention is a serious invasion of the rights of a person to privacy and dignity”.

Plus there was M’s evidence that she was well known in her community and that when she went back to school after her release “she was treated as a criminal”.

She asked for damages of R100 000, and the court awarded her R75 000 plus legal costs.

No one will begrudge her that award, but ultimately it’s paid by each one of us, even those too poor to pay tax. Her award represents money unavailable for education, development and pensions.

And although the police messed up by not following procedures and making proper inquiries before the arrest, ultimately you have to be mad at M’s husband whose mean-spirited, abusive actions have an impact on the whole country.

* Carmel Rickard is a legal affairs specialist. [email protected]

** The views expressed here are not necessarily those of Independent Newspapers.

The Mercury


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