Claassen v Minister of Justice and Constitutional Development and Another

• Jurisdiction: South Africa
• Citation: 2010 (6) SA 399 (WCC)

Claassen v Minister of Justice and Constitutional Development and Another
2010 (6) SA 399 (WCC)

2010 (6) SA p399

Citation	2010 (6) SA 399 (WCC)
Case No	A238/09
Court	Western Cape High Court, Cape Town
Judge	Moosa J and Binns-Ward J
Heard	November 13, 2009
Judgment	December 8, 2009
Counsel	CAS Avontuur (attorney) for the appellant.; S Dlwathi for the respondents.

Flynote : Sleutelwoorde H

Court — Independence of judiciary — Doctrine of judicial immunity from civil liability for damages arising from performance of judicial duties — Doctrine I consonant with Constitution — Only exception where conduct malicious or in bad faith — Magistrate having acted negligently, but not maliciously, in cancelling appellant's release on warning — Appellant deprived of liberty — Albeit magistrate's acts misdirected, nevertheless judicial acts and immunity applying to it — Constitution, s 165. J

2010 (6) SA p400

A Constitutional law — Human rights — Right to freedom and security of person — Magistrate negligently cancelling appellant's release on warning — Appellant bringing action for damages for unlawful detention — Doctrine of judicial immunity from civil liability — Section 12 of Constitution entrenching right to personal liberty, but not by itself affording right of compensation to person whose right infringed — Accordingly, dismissing appellant's claim B for damages against magistrate not entailing limitation of his right to liberty — Considerations underpinning doctrine of judicial immunity from civil liability making it inappropriate as matter of legal policy to characterise magistrate's conduct as wrongful in sense required for appellant's claim to have succeeded — Constitution, s 12.

Headnote : Kopnota

C The appellant appealed against the dismissal of his action for damages for unlawful detention, brought against a criminal court magistrate in his personal capacity and against the first defendant on the basis of the latter's alleged vicarious liability for the wrongdoings of the magistrate. The trial court found that the criminal court magistrate had not been properly joined D in the action, and the appellant's initial appeal against this finding was abandoned during the course of the appeal. The appellant, who had been released on warning, had failed to attend court for a provisional appearance on certain criminal charges, due to unforeseen difficulties in the transport arrangements he had made. He was subsequently arrested and brought before the court, where he was summarily remanded in custody until the E next scheduled hearing of the matter. He had taken the precaution of deposing to an affidavit explaining his difficulties, but was given no opportunity of presenting it or of otherwise explaining the reasons for his failure to appear.

Held, that the importance of punctilious compliance with the procedural requirements bearing on any sanctioned deprivation of liberty could not be F overemphasised. The criminal court magistrate had not held an enquiry [into the appellant's failure to attend] in terms of s 72(4) of the Criminal Procedure Act 51 of 1977, and neither had he cancelled the appellant's release on warning in the manner provided for in terms of s 72A, read with s 68(1) and (2) of the Act. The magistrate had thus acted in disregard of both the substantive and the procedural requirements for the exercise of any G power he had to curtail the appellant's right to personal freedom. The magistrate's explanation for his failure to enquire into the reasons for the appellant's absence — that s 72(4) employed the word 'may' rather than 'must', and was therefore permissive and not peremptory — was inherently implausible in the context of the magistrate's conduct. Without such an enquiry there could have been no basis for committing the appellant to H prison. (Paragraphs [12] - [15] at 405D - 407A.)

Held, further, that, despite the magistrate's actions and his demeanour at the hearing, it could not be found that he had acted mala fide or maliciously. There was no doubt, however, that he had acted negligently: his conduct had fallen short of what might be expected from a reasonable person in his position; he should have been aware that it might cause the appellant I damage; and he had unreasonably failed to avoid such harm occurring. As to whether or not a remedy in damages should be extended, where a person was unlawfully detained in consequence of a negligently made order by a magistrate acting outside the authority of the law, judges and others exercising adjudicative functions had been held immune against actions for damages arising out of the discharge of their judicial functions. This was a J matter of legal policy and the only exception was in cases where the judge's

2010 (6) SA p401

conduct was malicious or in bad faith. Given the finding that the magistrate A in casu had not acted maliciously, three questions had to be considered: firstly, whether judicial immunity applied in a situation where a magistrate exercised powers that he did not have; secondly, whether the fact that the appellant had been unlawfully committed to prison, in breach of his fundamental rights under s 12 of the Constitution should affect the judicial immunity that would otherwise have protected the magistrate from delictual B liability; and, thirdly, whether the fact that South Africa had adopted the International Covenant on Civil and Political Rights (ICCPR) — s 9(5) of which provided that any victim of unlawful detention had an enforceable right to compensation — likewise affected the magistrate's judicial immunity. (Paragraphs [16] - [24] at 407B - 410B.) C

Held, further, that, although the matter had been properly before the magistrate, he had dealt with it ineptly and without proper regard to the statutory constraints on his powers, thereby exceeding his jurisdiction. However, albeit his acts in connection with the matter may have been fundamentally misdirected, they were nevertheless judicial acts; accordingly, immunity applied to them. (Paragraph [27] at 410D - 411A.) D

Held, further, that the doctrine of judicial immunity was consonant with the provisions of the Constitution, notably s 165, which entrenched the principle of judicial independence with the attendant promotion of the ability of the judiciary to administer the law without fear, favour or prejudice. Section 12 of the Constitution entrenched a right to personal liberty, but did not by itself afford a right of compensation to a person whose right had E been infringed. Accordingly, denying the appellant a claim for damages against the magistrate did not entail a limitation of his right to liberty; nor did it denote that judicial immunity offended against the spirit, purport and objects of the Bill of Rights. The considerations underpinning the doctrine of judicial immunity compelled the conclusion that it would be inappropriate as a matter of legal policy to characterise the magistrate's conduct as F wrongful, in the sense required for the appellant's claim to have succeeded. (Paragraphs [31] and [32] at 413A - F.)

Held, further, that the ICCPR was not a self-executing legal instrument — the Republic's formal adoption of its provisions did not, without more, amend established domestic law. If unqualified effect were to be given to art 9(5) G of the ICCPR, South Africa would have to enact legislation to do so. Finally, given that the magistrate was immune from liability, the issue of the vicarious liability of the minister for the former's acts did not arise for determination. (Paragraphs [36] and [37] at 414F - H.)

Appeal dismissed. No order as to costs. H

Cases Considered

Annotations

Reported cases

Southern Africa

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) I 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995): referred to

City of Cape Town v Helderberg Park Development (Pty) Ltd 2008 (6) SA 12 (SCA): referred to

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779): referred to J

2010 (6) SA p402

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): referred to A

May v Udwin 1981 (1) SA 1 (A): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): referred to

Minister van Polisie v Ewels 1975 (3) SA 590 (A): referred to

Moeketsi v Minister van Justisie en 'n Ander 1988 (4) SA 707 (T): referred to B

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) (2001 (8) BCLR 779): referred to

R v Kumalo and Others 1952 (1) SA 381 (A): referred to

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301): followed

S v Coetzee 1997 (3) SA 527 (CC) (1997 (1) SACR 379; 1997 (4) BCLR 437): dictum in para [159] applied C

S v Singo 2002 (4) SA 858 (CC) (2002 (2) SACR 160; 2002 (8) BCLR 793): referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): dictum in para [18] D applied

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240): referred to

Zealand v Minister of Justice and Constitutional Development and Another 2008 (4) SA 458 (CC) (2008 (2) SACR 1; 2008 (6) BCLR 601): compared.

Australia E

Fingleton v R [2005] HCA 34 ((2005) 216 ALR 474; (2005) 227 CLR 166; (2005) 79 ALJR 1250; (2005) 153 A Crim R 503): dicta in paras [38] - [39], [188] and [190] applied.

England F

Case of the Marshalsea (1572 - 1616) 10 Co Rep 68 (77 ER 1027): referred to

R v Manchester City Magistrates' Court ex parte Davies [1989] QB 631: referred to

Re McC (A Minor) [1985] AC 528 (HL) ([1984] 3 All ER...