Comment: Wrongful arrest and detention

• Pages: 103-117
• DOI: https://doi.org/10.47348/SACJ/v34/i1a5
• Author: Okpaluba, C.
• Citation: (2021) 34 SACJ 103
• Published date: 06 July 2021
• Date: 06 July 2021

Wrongful arrest and detention

CHUKS OKPALUBA

Centre for Human Rights, University of the Free State

1 Arrest and detention until first appearance in court

The issue of the lawfulness of arrest and detention by the police or

continuing detention of the arrestee by an order of the magistrate

following the rst appearance of the suspect in court has, for the

last two decades, produced an incoherent jurisprudence in the high

court and the Supreme Court of Appeal (SCA). That issue has now

reached the Constitutional Court (CC) for the rst time in De Klerk v

Minister of Police (CCT 95/18) [2019] ZACC 32; 2020 (1) SACR 1 (CC)

(22August 2019) (De Klerk CC). Granted that the Constitutional Court

was as divided as the SCA was in its judgment in that case ((329/17)

[2018] ZASCA 45; 2018 (2) SACR 28 (SCA) (28 March 2018) (De Klerk

SCA)), the majority judgment of the CC has, at last, provided some

clarity on the interpret ation of this aspect of the puzzle in contemporary

constitutional/procedural and delict law relating to arrest and detention.

It has pointed to the direction that the claims should develop with

regard to further detention after rst appearance in court as manifested

by the South African cases decided since De Klerk CC judgment was

delivered, including the Eswatini Supreme Cour t judgment in Khumalo v

COP (47/2020) [2020] SZSC 27 (17 September 2020).

1.1 The facts and issues for determination in De Klerk

The plaintiff in De Klerk v Minister of Police (77688/2014) [2016]

ZAGPPHC 827 (9 September 2016) (De Klerk HC) had claimed the sum

of R1 million in total for alleged unlawful arrest without a warrant and

malicious prosecution for setting the law in motion with R500,000 for

each claim. The plaintiff had received a message from Constable Ndala

informing him that his employer had laid a charge of assault with

intent to do grievous bodily harm against him. Responding to that

message, the plaintiff reported to the police station, where the charge

and his constitutional rights were explained to him. Constable Ndala

COmmenTS

103

https://doi.org/10.47348/SACJ/v34/i1a5

(2021) 34 SACJ 103

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