De Klerk v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Citation | 2021 (4) SA 585 (CC) |
De Klerk v Minister of Police
2021 (4) SA 585 (CC)
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Citation |
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Case No |
CCT 95/18 |
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Court |
Constitutional Court |
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Judge |
Theron J, Cameron J, Froneman J, Mogoeng CJ, Basson AJ, Dlodlo AJ, Goliath AJ, Khampepe J, Mhlantla J and Petse AJ |
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Heard |
August 22, 2019 |
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Judgment |
August 22, 2019 |
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Counsel |
SJ Myburgh (with A van Staden and JC van Eeden) for the applicant. |
Flynote : Sleutelwoorde
Delict — Unlawful arrest and detention — Liability of police for court-ordered detention after unlawful arrest — Magistrate at first appearance unlawfully remanding plaintiff in custody without conducting bail hearing — Arresting officer subjectively foresaw that accused would not be released on bail at first appearance — Police minister liable for entire period of detention.
Delict — Elements — Causation and unlawfulness — Interplay of elements in unlawful detention suit where detention wrongfully extended at first court appearance after wrongful arrest — Liability of arresting officer and magistrate — Foreseeability and wrongful deprivation of liberty.
Headnote : Kopnota
Mr De Klerk instituted action in the Pretoria High Court against the respondent (the police minister) for damages for unlawful arrest and detention arising from his arrest and subsequent seven-day imprisonment. After the complainant had laid a charge of assault with intent with the police, Mr De Klerk at police request reported to the local police station, where he was immediately arrested without warrant and detained in the police cells. Later that morning he was taken to the local magistrates' court and placed in the holding cells. His case docket was handed to the prosecutor. In it was a recommendation by the arresting officer that he be granted bail of R1000. But when he appeared in court, still on the morning of his arrest, there was no mention of bail. Instead, the magistrate summarily postponed the case and remanded Mr De Klerk in custody, where he remained until the complaint against him was withdrawn seven days later.
Citing the initial wrongful arrest as the cause of the entirety of his detention, Mr De Klerk sought to hold the police minister solely liable, and did not sue the magistrate's employer, the justice minister. The police minister argued that Mr De Klerk's unlawful detention had ceased when the magistrate ordered further detention.
The High Court ruled the arrest and subsequent detention to have been lawful and dismissed the claim. In an appeal, the Supreme Court of Appeal unanimously ruled the arrest unlawful but was split on whether the police minister could be held liable for the unlawful detention after the magistrates' court appearance. The majority found that an unlawfully arrested claimant could not hold the police liable for his continued detention after a magistrate had ordered a remand in custody. Hence, they awarded only modest damages for the initial few hours' police detention. The dissent, discerning a sufficient causal link (factual and legal) between the arrest and the port-remand detention, held the police responsible for the entire period.
In application for leave to appeal to the Constitutional Court, the only issue was whether the police minister was liable for Mr De Klerk's post-remand detention. The unlawfulness of the arrest was not contested, nor was fault in issue. Hence the application, according to the majority, concerned causation (but see the dissenting judgments of Froneman J and Mogoeng CJ). Mr De Klerk argued that legal causation was established by the
2021 (4) SA p586
arresting officer's advance knowledge that the magistrate would remand him in custody (the standard procedure in what was a very busy remand court).
The majority (Theron J, Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ agreeing) held that there were strong policy reasons for finding fully for Mr De Klerk. The arresting officer subjectively foresaw the exact consequence of her unlawful arrest — extended imprisonment — and reconciled herself thereto. The court was entitled to take into account the circumstances known to the arresting officer and they implied that it would be reasonable, fair and just to hold the police minister liable. The court appearance and the magistrate's remand order did not amount to a fresh causative event breaking the causal chain. (See [75].) But to hold the police minister liable did not mean that magistrates should not be held accountable for dereliction of their constitutional duty to apply their minds to the question of bail, which should in the ordinary course have consequences for the magistrate involved, not the police. The magistrate should not be exclusively liable for the later detention, given the original delict by the arresting officer and her subjective foresight of the subsequent harm. (See [88].)
In a concurring judgment Cameron J invoked the established principle that police liability for wrongful arrest was not truncated where the remand court failed to undertake a proper judicial evaluation on the further detention of the arrestee (see [105] – [106]). The SCA correctly concluded that the arresting officer foresaw what would happen in court, making her responsible for the wrong done by the further detention (see [112]).
In a dissent Froneman J (Goliath J and Mhlantla J agreeing) saw the issue as one of wrongfulness in the form of deprivation of liberty, not legal causation (see [115]). This meant assessing the wrongfulness of the arresting officer's conduct in relation to the further detention. But having brought Mr De Klerk to court, she had no further authority in respect of his release or further detention, and there was no reason in equity or good conscience to hold her liable for something that was not in her authority to determine. In these circumstances, the foreseeability of further unlawful detention did not make her liable for the harm. To ascribe liability to her merely on the basis of foreseeability would, moreover, blur the distinction between unlawful and malicious deprivation of liberty (which requires the interposition of a judicial act). The harm of Mr De Klerk's further detention was a discrete harm caused by the magistrate's failure to uphold her constitutional duties. The appeal ought to be dismissed. (See [126], [133] – [136], [139] – [140], [145] – [148], [151].)
In a further dissent Mogoeng CJ held that the constitutional obligations imposed on the magistrates' court were an automatic novus actus interveniens. Considerations of public policy — particularly the value of accountability for one's own constitutional obligations, justice (which could never depend on what an individual who caused the initial harm knew), the separation of powers and the supremacy of the Constitution, together — rendered it unreasonable to impute the liability due to the conduct of the judiciary to the police minister as well. (See [185].)
Cases cited
Southern Africa
Alston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W): referred to
2021 (4) SA p587
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) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 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
De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) (([2018] 2 All SA 597; [2018] ZASCA 45): reversed 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 (5) BCLR 618; [2016] ZACC 11): 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
H v Fetal Assessment Centre 2015 (2) SA 193 (CC) (2015 (2) BCLR 127; [2014] ZACC 34): referred to
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