Minister of Law and Order v Thandani

• Jurisdiction: South Africa
• Judgment Date: 26 September 1991
• Citation: 1991 (4) SA 862 (A)

Minister of Law and Order v Thandani
1991 (4) SA 862 (A)

1991 (4) SA p862

Citation	1991 (4) SA 862 (A)
Court	Appellate Division
Judge	Joubert JA, Hefer JA, Vivier JA, Milne JA and Kriegler AJA
Heard	September 12, 1991
Judgment	September 26, 1991

Flynote : Sleutelwoorde D

Police — Actions against — Action for damages for wrongful arrest and unlawful detention — Damages — Measure of — Plaintiff wrongfully E arrested by South African Police — Plaintiff detained for short period by South African Police and then handed over to Ciskeian Police — Plaintiff detained by South African Police not to bring him before a court but to hand him over to Ciskeian Police — Minister liable to compensate plaintiff for period of his detention in Ciskei.

F Police — Functions of — Maintenance of law and order — Police not above the law in performance of that function — Roman legal principle of Princeps legibus solutus est never received in Roman-Dutch law and not part of South African legal system.

Headnote : Kopnota

G The respondent had been arrested by a member of the South African Police and, after being detained for about three hours, he was handed over to the Ciskeian Police who detained him for 59 days. The respondent's arrest by the South African Police was unlawful as was their handing over of him to the Ciskeian Police. The respondent was neither interrogated by the Ciskeian Police nor charged with any offence, and he was never brought before a court of law in the Ciskei. The officer who had arrested the respondent knew at that time that the handing over of the respondent to the Ciskeian Police was unlawful and in breach of the H existing extradition agreement between the Governments of the Republic of South Africa and of the Ciskei. In an action in a Circuit Local Division, the appellant was held liable to compensate the respondent not only for the respondent's unlawful arrest and detention by the South African Police, but also for the period of his detention in the Ciskei. In an appeal,

Held, having regard to the nature and scope of the respondent's action, I ie reliance on a single delict of unlawfully detaining the respondent and handing him over to the Ciskeian Police, and the knowledge of the arresting officer that the purpose of the arrest was not to bring the respondent before a court but to hand him over to the Ciskeian Police for his detention by them, that the respondent had established the liability of the appellant for his detention in the Ciskei. Appeal dismissed.

The Court remarked further that it appeared from the undisputed and accepted evidence of a police officer that he and other members of the Security Branch of the South African Police had by their actions J deliberately disregarded and flouted provisions

1991 (4) SA p863

A of the Criminal Procedure Act 51 of 1977, the Extradition Act 67 of 1962 and the extradition agreement between the Governments of the Republic of South Africa and of the Ciskei in accommodating the request of the President of Ciskei to arrest the respondent. It was not the function of the police to accommodate the mere request of a foreign ruler. In terms of s 5 of the Police Act 7 of 1958, one of the basic functions of the South African Police is the maintenance of law and order in the Republic. In the performance of their functions they are not above the law. No one in the Republic is above the law. Everyone in the Republic B is obliged to observe and obey the law irrespective of how high or humble his station in the community may be. Even the State President as Head of State is subject to the law. The Roman legal principle Princeps legibus solutus est (D 1.3.31) was never received in the Roman-Dutch law and therefore does not form part of our legal system.

The decision in the East London Circuit Local Division in Thandani v Minister of Law and Order 1991 (1) SA 702 (E) confirmed. C

Case Information

Appeal from a decision in the East London Circuit Local Division of the Eastern Cape Division (Van Rensburg J), reported at 1991 (1) SA 702. The facts appear from the judgment of Joubert JA.

J C Froneman SC for the appellant: The issue that arises for decision D is whether the appellant is liable to compensate the respondent for the period of the respondent's detention in the Ciskei, in addition to the admitted liability for the unlawful arrest and detention in South Africa. The learned Judge in the Court a quo stated that: 'The solution of this dispute depends on whether the requisite causation was present to give rise to legal responsibility.' He also found that the question whether the detention of the respondent in the Ciskei was lawful or not, E was irrelevant. In making these findings he erred. The 'solution of the dispute' is to be founded in the application of the general requirements for the actio injuriarum, and not primarily in the question of causation. The injuriae that the respondent complains of in respect of his detention in the Ciskei are, firstly, the deprivation of his liberty F (relating to his corpus) and, secondly, the associated affront to his dignity (dignitas) and reputation (fama). The three essential requisites to establish an action for injuria are: (1) an intention on the part of the offender to produce the effect of his act; (2) an overt act which the person doing it is not legally competent to do; and which at the same time is (3) an aggression upon the right of another, by which G aggression the other is aggrieved and which constitutes an impairment of the person, dignity or reputation of the other. Delange v Costa 1989 (2) SA 857 (A) at 860I-861B. In the case of unlawful arrest and detention (such as the present) the first requirement does not include the requirement that the perpetrator should have had knowledge of the wrongfulness of his act. Ramsay v Minister van Polisie en Andere 1981 (4) SA 802 (A) H at 818G-H. Accordingly, in order to establish liability on the part of the appellant for the deprivation of liberty and impairment of dignity and reputation in the Ciskei, it had to be shown that these injuriae were unlawful, in satisfaction of the second requirement referred to in para 2 above. Not only had it to be shown I that the injuriae were unlawful, but also that they were committed by someone acting on behalf of, or as agent of, the defendant. Birch v Johannesburg City Council 1949 (1) SA 231 (T) at 239; Rini v Carr 1921 EDL 239 at 241. It has not been suggested that it was not within the competence of the Ciskei authorities to arrest and detain the respondent in terms of the Ciskei legislation. This is therefore not a case where the illegality of the arrest in South Africa taints the subsequent J detention in

1991 (4) SA p864

A Ciskei with illegality as well. Cf Minister of Law and Order, Kwandebele v Mathebe 1990 (1) SA 114 (A) at 122E-G. Furthermore, there is no suggestion in the evidence that the Ciskeian Police, in detaining the respondent in the Ciskei, acted on behalf or as agents or as servants of the defendant. Therefore, the respondent failed to discharge the onus resting on him in this regard. Cf Minister of Police v Mbilini 1983 (3) SA 705 (A) B at 711H. If, however, it is found that the detention of the respondent in the Ciskei was done on behalf of the appellant, the question arises whether the appellant is liable in a South African Court for such injuriae committed in another country. Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 41, C commenting on the provisions of s 1 of Act 20 of 1957. If the learned authors' statement is correct, the appellant is not liable for the alleged injuriae committed in the Ciskei. No clear case law could be found on this point, except two cases that suggest that a foreign defamation is actionable locally, provided that the defendant is subject to the local jurisdiction. Mackay v Phillips (1830) 1 Menz 455 at 460, D 462; Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) at 1222-3. These decisions are not necessarily correct. The actio injuriarum is in origin an actio vindictam spirans which is not aimed at the compensation of patrimonial loss. Whittaker v Roos and Bateman 1912 AD 92 at 123; Joubert (ed) Law of South Africa vol 7 para 58. The action is still, to some extent, penal in nature. Generally speaking, crimes committed E outside the Republic of South Africa cannot be tried by a South African Court, except in certain specified instances. Hiemstra Suid-Afrikaanse Strafproses 4th ed at 252-7. It may be that the same position should apply to the actio injuriarum, but not in respect of the actio legis Aquilia where the damages are of a compensatory nature and not penal in F nature. If, however, it is accepted that the alleged detention in the Ciskei is actionable in a South African Court, the next question is to determine the law applicable to decide whether such detention is an actionable delict. On this question there is no unanimity amongst South African writers. Some favour a qualified lex fori approach. Edwards 'Choice of Law in Delict: Rules or Approach?' (1979) 96 SALJ 48. Others G are in favour of the application of the 'proper law'. Kahn, chapter on 'Conflict of Laws' in Hahlo and Kahn The Union of South Africa: the Development of its Laws and Constitution. There is also obiter support for the English rule as set out in Phillips v Eyre (1870) LR 6 QB 1 in the case law. Rogaly's case supra at 1223; Crawford 'The "proper" Law of H a Delict' (1968) 85 SALJ 314. Most commentators seem to prefer the application of the lex loci delicti commissi, with some deviations where its application causes difficulty. See Schmidt in Joubert (ed) Law of South Africa vol 2 para 568; Du Plessis 'Die Suid-Afrikaanse Internasionale Deliktereg' Gedenkbundel H L Swanepoel at 138; Forsyth Private...