Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

• Citation: (2020) 33 SACJ 616
• Author: Okpaluba, C.
• Pages: 616-644
• DOI: https://doi.org/10.47348/SACJ/v33/i3a6
• Published date: 04 March 2021
• Date: 04 March 2021

Quantication of damages for

unlawful arrest and detention:

South Africa, Namibia and

Eswatini/Swaziland (2)

CHUKS OKPALUBA*

The discussion of the S outh African c ase law on the quanticat ion of

damages arising f rom wrongful ar rest and detention which commenced

in part (1) of this series, continues in t he present part. In pa rt (1), the

Constitutional Cou rt judgment in Zeal and v Minister of Justice and

Constitutional Development 2008 (4) SA 458 (CC) which emphasised the

respect and reverence for the constit utional guara ntee of personal liber ty,

and De Klerk v Minister of Polic e 2018 (2) SACR 28 (SCA) as well as the

recent Constitutiona l Court judgment in the same case – De Kle rk v Minister

of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were

among a host of important c ases discussed. T he Supreme Court of Appea l

cases on quanticat ion of damages for wrongfu l arrest and detention al so

discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of

Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety

and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017).

The rst section of t his part conti nues with the discus sion of the other

instances not involving fai lure to take the detainee to cou rt within 4 8 hours

or consequences of the accused pers on’s rst appearance in court where by

Hendricks v Minister of S afety and Security (CA&R /2015) [2015] ZAECGHC

61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28

(ECG); and Ramphal v Minister of Safety and Security 20 09 (1) SACR 211 (E)

are among the cases disc ussed. The second li mb of the discussion in t his

part concerns the i ssue of wrongful arrest and detention unde r the Domestic

Violence Act 116 of 1998 where the law has developed side by side with the

traditional law of wrongf ul arrest and police negligence as illustr ated by the

case of Naidoo v Minister of Police 2 016 (1) SACR 468 (SCA).

* LLB, LLM (Lo ndon), PhD (West Indies), Research Fellow, Centre for Human Rights,

University of the Free St ate.

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4 Other Instances of Wrongful Arrest and Detention

4.1 Arrest on superior orders1

In Ramphal v Minister of Safety and Security,2 the appellant was

arrested without a warrant by a police ofcer who was ordered to do

so by a senior prosecutor. Plasket J found the arrest to be wrongful

because it did not meet the jurisdictional facts of either s 40(1)(a)

or (b) of the Criminal Procedure Act (CPA).3 Rather, it was intended

to force the arrestee to abandon the right to silence in s 35(3)(h) of

the Constitution. He awarded the plaintif f the sum of R35 000 for

the wrongful arrest which lasted for 19 hours and 10 minutes. In so

awarding, the judge took into account that the appellant was ‘really

traumatised’ by the whole episode. It took a toll on his health, his

dignity and traumatised his family who wondered what the law was

1 It has been establi shed that where a police of cer carries out t he physical part of

an arrest on the com mand of another pol ice ofcial under who m he serves, and

who makes the requisite not ication to him , it is actually t he superior ofcer who

must harbour the r easonable suspicion - Minister of Justice v Ndala 1956 (2) SA 777

(T) at 780; Bhika v Minis ter of Justice 1965 (4) SA 399 (W) at 400G. It was thus held

in Damise v Minister of Police (EL354/2018) [2019] ZAECELLC 3 4 (12 December

2019) at paras [19]–[25], [26]–[28] that the station com mander who ordered th at

the plaintif f be arrested and de tained for approximat ely two days harbour ed a

reasonable suspicion bas ed on the inform ation available to him and c ontained in

the police docket, that t he plaintiff h ad chased members o f the other group at the

scene of a motor vehicle accident in wh ich he was involved. It was not disputed that

there were statements i n the police docket implicating the plaint iff. The arres t was

accordingly justi ed in terms of s 40(1)(b) of the CPA and to hold otherwise would

be to unnecessar ily hamper the power of t he police to arrest w ithout a warrant

by creating extr a limitation s not intended by the legislat ure. See also D uncan v

Minister of Law and Or der 1984 (3) SA 460 (T) at 466. However, the police was not

totally absorbed o f liability i n Damise as t hey were found liable for the detent ion

bearing in m ind that an arre st and detention are t wo separate processe s for an

arrest could be law ful but detention cou ld be unlawf ul – MR v Minister of Safety

and Security 2016 (2) SACR 540 (CC) at para [39]. It has also been t he law that an

arrest that is no t followed by a proper exercise of the di scretion of the ar resting

ofcer as to whether dete ntion would be necessary in order to secu re the plaintiff’s

attendance in cour t, is in itself unlaw ful – Mvu v Minister of Safety and Se curity 2009

(2) SACR 291 (GSJ). So, having not been satised that the defendant h ad successfully

discharged the bu rden of justifying the detention, M benenge JP concluded that the

detention was unlaw ful. Aft er referring to the pre vious award in Nel v Minist er of

Police (CA62/2017) [2018] ZAECGHC 1 (23 Januar y 2018) and the cases cited therein

with approval as providi ng the guidance on t he award of damages in t his instance,

the Judge President awarded t he plaintiff in Damise the sum of R40 0 00 as a fair and

reasonable amount in t he circumstances of the case.

2 2009 (1) SACR 211 (E).

3 See the discussion by C Okpaluba ‘Arres t without a warrant : When is an offence

committed in t he presence of an arresti ng ofcer?’ (2015) 28 SACJ 257–283 at para [2];

C Okpaluba ‘The end of t he search for a fth ju risdiction al fact on arrest o n

reasonable suspicion: A rev iew of contemporary developments’ (2017) 30 SACJ 1–22

at para [7].

Revising spousal testimonial privilege and marital

communications privilege (2) 617

https://doi.org/10.47348/SACJ/v33/i3a6

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