De Klerk v Minister of Police

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
• Judgment Date: 22 August 2019
• Citation: 2020 (1) SACR 1 (CC)
• Docket Number: CCT 95/18 [2019] ZACC 32
• Hearing Date: 15 November 2018
• Counsel: SJ Myburgh (with A van Staden and JC van Eeden) for the applicant. MS Phaswane (with DD Mosoma) for the respondent.
• Court: Constitutional Court

Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring):

Introduction

[1] This is an application for leave to appeal against a decision of the Supreme Court of Appeal. [1] The main issue for determination is whether the Minister of Police (the respondent) is liable to compensate Mr De Klerk (the applicant) for the entire period of his detention following his unlawful arrest, including the period following his first appearance in court. Related questions are whether the unlawful detention of the applicant ceased when the magistrate ordered his further detention and whether the magistrate's order rendered the subsequent harm caused by his detention too remote (for the purposes of legal causation) from the unlawful arrest.

Background

[2] The facts are common cause. Around 11 December 2012 Mr Rael Lasarow lodged a complaint of assault against the applicant. He alleged that the applicant (his employee at the time) had pushed him into a glass picture frame hanging on a wall. As a result, the glass broke and injured Mr Lasarow.

[3] On 21 December 2012, at around 08h00, the applicant reported to the Sandton Police Station after receiving a voice message requesting him to do so. He was arrested without a warrant by D/Const Ndala on a charge of assault with intent to do grievous bodily harm. He was transported to the Randburg Magistrates' Court, placed in holding cells and appeared in court at around 10h00.

[4] It was recorded in the docket that Const Ndala had recommended bail in the amount of R1000. However, the applicant was not afforded the opportunity to apply for bail at this first appearance. The matter was routinely postponed, without the question of bail arising or being addressed. [2] Instead, the magistrate informed the applicant without more that he would be remanded in custody at the Johannesburg prison.

Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring)

The applicant was released from prison on 28 December 2012 after Mr Lasarow withdrew his complaint against the applicant.

[5] The applicant instituted a delictual claim against the respondent in the High Court of South Africa, Gauteng Division, Pretoria (High Court), [3] for damages flowing from his arrest and detention. [4] The High Court accepted that the arresting officer believed that the applicant had committed an offence in terms of sch 1 and had exercised her discretion to arrest him in order to secure his attendance in court. It held that the arrest and subsequent detention were lawful and dismissed the claim.

[6] Aggrieved by this outcome, the applicant appealed to the Supreme Court of Appeal, with leave granted by that court. All five judges agreed that the applicant's arrest was unlawful and that he was entitled to damages in compensation for it. The judges differed only on whether the respondent should be held liable for the applicant's unlawful detention after his first appearance in court.

[7] The majority [5] held that the respondent cannot be liable for the applicant's detention after his first court appearance. As they put it: '(W)hat happened in court and thereafter cannot be placed before the doorstep of the respondent.' [6] The majority relied on an analysis of the Supreme Court of Appeal's judgment in Sekhoto [7] to find that, once an accused is brought to trial, it is the presiding officer's responsibility to ensure that the accused's fair-trial rights under s 35(1)(e) – (f) are not undermined. [8] The majority reasoned that the arresting peace officer accordingly cannot be held liable for an unlawful detention after a court hearing where the presiding officer fails to fulfil their responsibilities regarding the further detention of the arrested person. The majority judgment held that the respondent was liable to compensate the applicant for his unlawful detention only up and until his appearance in court (for a period of approximately two hours) and awarded him R30 000 in damages, plus costs.

Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring)

[8] The minority [9] held that the respondent should be liable for the entire period of detention on the basis that the lawfulness of the detention after his first court appearance is not essential for establishing liability. The minority reasoned that what matters is whether the police can be said to have caused (both factually and legally) the detention after the first hearing as a result of their unlawful conduct (the arrest). [10] The minority found that factual and legal causation for the applicant's injury had been established and awarded him R300 000 in non-patrimonial damages. The minority held that, because the magistrate had not exercised any considered discretion regarding bail, her conduct was not a break in the causation between arrest and the detention after the applicant's first court appearance. [11]

[9] In this court the applicant seeks leave to appeal against part of the order and decision of the Supreme Court of Appeal. The applicant submits that the approach adopted in the majority judgment implies that a litigant is required to prove the unlawfulness of the harmful consequences which they have suffered if they wish to be compensated. The applicant submits that this constitutes a deviation from the normal approach to causation in delictual matters.

[10] The respondent supports the outcome and reasoning of the majority judgment. He contends that the court appearance and court remand order collectively constitute a novus actus interveniens (fresh intervening event) breaking the chain of causation that started with the arrest. For this reason, the respondent contends that liability cannot be imputed to the police for the applicant's further detention.

Jurisdiction and leave to appeal

[11] The issue as to whether the applicant's detention was consistent with the principle of legality and his right to freedom and security of the person in s 12(1) of the Constitution is a constitutional matter. [12] The further questions of whether any liability arising from his detention that followed his first court appearance should be attributed to the arresting officer, and the relationship between this and the lawfulness of his subsequent detention, raise arguable points of law of general public importance.

[12] These questions ought to be considered by this court. [13] The existence of conflicting decisions from the lower courts, pertaining to the question before us, and the split decision in the Supreme Court of Appeal are indicative that the issue demands clarity from this court and that there are prospects of success. This matter is of importance beyond the parties:

Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring)

its impact is substantial and has a bearing upon the public interest. [14] It is important for this court to establish the parameters applicable to a claim for damages arising from detention after a court appearance, and to define the circumstances in which an unlawful arrest may lead to liability being imposed on an arresting police officer for that subsequent detention. This court has not yet considered these issues. For these reasons, it is in the interests of justice for leave to appeal to be granted.

Unlawful arrest and detention

[13] A delict comprises wrongful, culpable conduct by one person that factually causes harm to another person that is not too remote. [15] When the harm in question is a violation of a personality interest caused by intentional conduct, then the person who suffered the harm must institute the actio iniuriarum (action for non-patrimonial damages) to claim compensation for the non-patrimonial harm suffered. The harm that the applicant complains of in respect of his detention is the deprivation of his liberty — a significant personality interest. [16] He alleges that it was his wrongful arrest that caused the harm (namely, the detention before and after his court appearance).

[14] A claim under the actio iniuriarum for unlawful arrest and detention has specific requirements:

(a)

The plaintiff must establish that their liberty has been interfered with;

(b)

the plaintiff must establish that this interference occurred intentionally. In claims for unlawful arrest, a plaintiff need only show that the defendant acted intentionally in depriving their liberty and not that the defendant knew that it was wrongful to do so; [17]

(c)

the deprivation of liberty must be wrongful, with the onus falling on the defendant to show why it is not; [18] and

(d)

the plaintiff must establish that the conduct of the defendant must have caused, both legally and factually, the harm for which compensation is sought. [19]

[15] The unlawfulness of the arrest is not at issue before us. The High Court held that the arrest and subsequent detention were lawful and

Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring)

dismissed the claim. This reasoning was unanimously overturned by the Supreme Court of Appeal and the majority held — with the minority concurring — that the arrest was unlawful. This finding is not challenged on appeal. There is also no issue of fault before us.

[16] Similarly, there is no appeal against the finding by the Supreme Court of Appeal that the respondent is liable for the applicant's unlawful detention from the time of his arrest until his first appearance in court, a period of about two hours. This application is about whether the harm associated with the applicant's detention on the order of the magistrate after his first court appearance until his release on 28 December 2012 can be attributed to the unlawful arrest by the police. As mentioned, the respondent contends that the unlawful detention of the applicant ceased when the magistrate ordered his further detention.

[17] This application accordingly implicates...