De Klerk v Minister of Police

• Jurisdiction: South Africa
• Citation: 2020 (1) SACR 1 (CC)

De Klerk v Minister of Police
2020 (1) SACR 1 (CC)

2020 (1) SACR p1

Citation	2020 (1) SACR 1 (CC)
Case No	CCT 95/18; [2019] ZACC 32
Court	Constitutional Court
Judge	Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Heard	November 15, 2018
Judgment	August 22, 2019
Counsel	SJ Myburgh (with A van Staden and JC van Eeden) for the applicant.; MS Phaswane (with DD Mosoma) for the respondent.

Flynote : Sleutelwoorde

Arrest — Procedure after arrest — Detention of accused after appearing in court — Investigating officer aware that accused would not be released on bail on appearance in court, despite recommending such — Police liable for unlawful detention after remand where magistrate failed to consider his release on bail.

Headnote : Kopnota

The applicant instituted action in the High Court against the respondent for damages for unlawful arrest and detention, arising from his arrest on a charge of assault with intent to do grievous bodily harm and his subsequent detention for eight days. The charge resulted from an incident in which he pinned the complainant against a picture frame on a wall. After the complainant laid a charge, the applicant was required to report to the police station where said charge was explained to him. He was unable to contact his attorney and made no statement, but was immediately arrested and taken to the magistrates' court where he appeared only two hours after arriving at the police station. He was remanded in custody, despite the investigating officer's recommendation that bail of R1000 be fixed. The investigating officer was aware that the applicant would not be released on bail at his first appearance in court, such appearance being a mere formality in a busy remand court. The High Court dismissed the action, as did the majority of the court on further appeal to the Supreme Court of Appeal. At issue was whether the applicant could claim against the Minister of Police for his detention after his first court appearance.

The majority of the court, per Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring), held that, although subjective foresight of harm could not itself necessarily imply that harm was not too remote from conduct, it was a weighty consideration. In the present matter, the police officer subjectively foresaw the precise consequence of her unlawful arrest of the

2020 (1) SACR p2

applicant. She knew that the applicant's further detention after his court appearance would ensue. What happened in the reception court was not, to the constable's knowledge, an unexpected, unconnected and extraneous causative factor — it was the consequence foreseen by her, and one to which she reconciled herself. In determining causation, the court was entitled to take into account the circumstances known to the constable and those circumstances implied that it would be reasonable, fair and just to hold the respondent liable for the harm suffered by the applicant, that was factually caused by his wrongful arrest. For these reasons, and in the circumstances of this matter, the court appearance and the remand order issued by the magistrate did not amount to a fresh causative event breaking the causal chain. (See [81].)

At the same time, holding the Minister of Police liable did not mean that a magistrate, as an officer of the court, could not and should not in egregious cases be held accountable for dereliction of constitutional duties. The duty of magistrates to apply their minds to the question of bail was of the utmost constitutional significance. Failure to discharge this duty must result in consequences for the presiding officer involved. Moreover, in the ordinary course, members of the police would not be liable for derelictions of duty by members of the magistracy. On the facts of this case, the magistrate concerned should not be exclusively liable for the subsequent detention, given the original delict by the arresting officer and her subjective foresight of the subsequent detention and the harm associated therewith. (See [88].)

Cameron J, concurring with the conclusion of the majority judgment, held that in view of the manner in which the applicant had cast his claim, in wrongfully arresting the applicant and sending him without more for processing to that particular court, with no effort to ensure that he was processed differently and thus afforded the opportunity to apply for bail, the police officer who unlawfully arrested the applicant was as much responsible for the wrong done by his further detention as if, were she being sued for personal injury inflicted by a negligently driven motor car, she had culpably caused him to fall into its path and the Minister was accordingly liable. (See [112].)

Froneman J, dissenting (Goliath J and Mhlantla J concurring), held that the police constable only had the constitutional responsibility of bringing the applicant to court timeously. She had done so and once she had done that, she had no further direct legal competence or authority to charge the applicant or to decide on his release or further detention. At best, she could attempt to influence these decisions by recommending bail, which she had also done. There was no objective evidence that she acted unlawfully in terms of her statutory powers and obligations in respect of the harm at stake, namely the further detention of the applicant after his court appearance. If there was nothing further within her competence that she could have done, then the foreseeability of further unlawful detention as a matter of legal causation did not make her liable for such harm. This was because her participation could not be said to have wrongfully caused harm if that harm was beyond her constitutional or legislative authority, control or competence, irrespective of whether it was foreseeable or not. The responsibility to charge the applicant was that of the prosecutor, that of deciding to release him or detain him further was that of the magistrate. In these circumstances, to ascribe liability to the constable on the mere basis of foreseeability of harm would undermine the distinction between unlawful and malicious deprivation of liberty. (See [133] – [135].)

Mogoeng CJ, dissenting, held that the constitutional obligations imposed on the court were an automatic novus actus interveniens. Considerations of public policy, particularly the value of accountability for one's own constitutional obligations, and justice, which could never depend on what an individual

2020 (1) SACR p3

who caused the initial harm knew, as well as separation of powers and the supremacy of the Constitution, rendered it unreasonable to impute the liability due to the judiciary to the Minister of Police as well. (See [185].)

Cases cited

Southern Africa

Alston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W): referred to

Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR 1015; [1996] ZACC 16): referred to

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): dictum in para [28] applied

Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile 2010 (5) BCLR 422 (CC) ((2010) 31 ILJ 273; [2010] 5 BLLR 465; [2010] ZACC 3): compared

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): referred to

Bruce v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415; [1998] ZACC 3): compared

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

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

Cole's Estate v Olivier 1938 CPD 464: referred to

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) ([2014] 1 All SA 267; [2013] ZASCA 161): referred to

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC) (2014 (12) BCLR 1397; [2014] ZACC 28): referred to

CUSA v Tao Ying Metal Industries 2009 (2) SA 204 (CC) (2009 (1) BCLR 1; [2009] 1 BLLR 1; (2008) 29 ILJ 2461; [2008] ZACC 15): referred to

De Klerk v Minister of Police 2016 JDR 1672 (GP): overruled on appeal

De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) ([2018] ZASCA 45): overruled on appeal

DE v RH 2015 (5) SA 83 (CC) (2015 (9) BCLR 1003; [2015] ZACC 18): referred to

Dormehl v Minister of Justice and Others 2000 (2) SA 987 (CC) (2000 (5) BCLR 471; [2000] ZACC 4): compared

Duma v Minister of Police and Another [2016] ZAGPPHC 428: compared

Ebrahim v Minister of Law and Order and Others 1993 (2) SA 559 (T): referred to

Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) ([2016] ZACC 11; 2016 (5) BCLR 618): referred to

Ex parte Die Minister van Justisie: In re S v Grotjohn 1970 (2) SA 355 (A): referred to

F v Minister of Safety and Security and Others 2012 (1) SA 536 (CC) (2012 (3) BCLR 244; [2011] ZACC 37): referred to

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) ([2009] 1 All SA 525; [2008] ZASCA 134): applied

Glenister v President of the Republic of South Africa and Others 2009 (1) SA 287 (CC) (2009 (2) BCLR 136; [2008] ZACC 19): referred to

2020 (1) SACR p4

H v Fetal Assessment Centre 2015 (2) SA 193 (CC) (2015 (2) BCLR 127; [2014] ZACC 34): referred to

Home Talk Developments (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality 2018 (1) SA 391 (SCA) ([2017] 3 All SA 382; [2017] ZASCA 77): referred to

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) ([1989] ZASCA 138): referred to

Isaacs v...