About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2018
>>
[2018] ZASCA 45
|
|
De Klerk v Minister of Police (329/17) [2018] ZASCA 45; [2018] 2 All SA 597 (SCA); 2018 (2) SACR 28 (SCA) (28 March 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 329/17
BRYAN
JAMES DE KLERK
APPELLANT
and
MINISTER
OF POLICE
RESPONDENT
Neutral
citation:
De Klerk v Minister of
Police
(329/17)
[2018] ZASCA 45
(28 March
2018)
Coram:
Shongwe ADP, Leach and Majiedt JJA and Rogers
and Hughes AJJA
Heard:
8 March 2018
Delivered:
28 March 2018
Summary:
Delictual claim – Unlawful arrest and
detention – what constitutes unlawful arrest – whether
the Minister of Police
is liable for the further detention after the
suspect has been remanded to custody by the court is fact-based
– the
purpose of arrest is to bring the arrested person to
court.
ORDER
On
appeal from:
Gauteng Division, Pretoria
(Tokota AJ sitting as court of first instance):
1
The appeal is upheld with costs.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
The defendant is ordered to pay the plaintiff the sum of R30 000
for general damages.
(b)
The defendant is ordered to pay interest
a tempore morae
on
the sum of R30 000 from date of summons.
(c)
The defendant is ordered to pay the plaintiff’s costs of suit.’
JUDGMENT
Shongwe
ADP (Majiedt JA and Hughes AJA concurring)
[1]
This appeal concerns a delictual damages claim resulting from an
alleged unlawful arrest and detention. The appellant, Mr Bryan
James
de Klerk, was arrested on a charge of assault with intent to do
grievous bodily harm on 21 December 2012 and appeared in
court on the
same day. He was remanded in custody at Johannesburg prison until he
was released on 28 December 2012 after the complainant
withdrew the
complaint. On 23 October 2014, the appellant issued summons against
the Minister of Police claiming damages for unlawful
arrest and
detention and malicious prosecution in the sum of R1 million. The
high court dismissed the claim with costs and the
subsequent
application for leave to appeal suffered the same fate. The appeal is
with leave of this court.
[2]
The facts are largely common cause, save for the lawfulness or
otherwise of the arrest and the quantum of the damages. The appellant
testified that the complainant owed him money for services rendered.
He went to the complainant’s office on 11 December 2012,
to
demand his money and an altercation ensued when it became apparent
that the appellant was not going to get his money. They
manhandled each other. In the scuffle, the complainant grabbed him
and he held the complainant back. He pushed the complainant
against
the wall causing him to bump into the frame of a wall picture. The
glass broke and cut the complainant’s back. The
cuts to the
complainant’s back were
sutured and a medical report was
issued. He reported the incident to the police who opened a docket
for assault with intent to do
grievous bodily harm.
[3] On 20 December
2012 the appellant received a voice message on his telephone to go to
the police station to discuss the complaint
against him. On 21
December 2012 he attended at the Sandton police station and met a
detective, Ms Ndala, who explained the allegations
against him and
asked him if he was willing to make a statement, but the appellant
elected to make a statement in court. While
at the police station,
the appellant called his attorney, but was unable to get hold of him.
He was placed under arrest and within
an hour or so he was taken to
court. Ms Ndala indicated, in writing that she had no objection
against bail of R1 000. The appellant’s
version is that he was
never given an opportunity to make a statement in response to the
allegations against him. In court the
appellant was remanded in
custody to the Johannesburg prison (commonly known as Sun City). As
indicated earlier, on 28 December
2012, the complainant withdrew the
charges and the appellant was released from prison. I shall now deal
with the findings of the
court a quo, the application of the law to
the particular facts of this case and my conclusion.
[4] The particulars
of claim clearly delineate the cause of action as an unlawful arrest
and detention without a warrant and malicious
prosecution. In para 7
of the judgment of the court a quo, it characterised the appellant’s
case as: ‘It appears that
the primary basis upon which it is
alleged that the arrest was unlawful is because it took place without
a warrant’. Counsel
for the respondent conceded that no
ratio
decidendi
is apparent in the judgment. What appears to be a ratio
is what is said in para 24 of the judgment namely that: ‘Furthermore
I find that the members of the police acted reasonably in the
circumstances of this matter and I am unable to criticise them. In
my
view any criticism against them would not be justifiable.’
[5] The appellant
contended that the court a quo erred in not considering that there
were no objective facts in evidence underpinning
any reasonable
suspicion that an offence referred to in Schedule 1 of the Criminal
Procedure Act 51 of 1977 (the Act) had been
committed. He contended
further that the absence of a warrant made the arrest unlawful
because assault with intent to do grievous
bodily harm is not one of
the offences referred to in Schedule 1. It was common cause that at
the time of the appellant’s
arrest, the police were acting
within the course and scope of their employment with the respondent
(the Minister). Consequently,
as their employer, the respondent was
vicariously liable for their wrongful acts. It was also common cause
that the respondent
bore the onus to prove the lawfulness of the
arrest.
[6] The respondent
relied on the provisions of s 40(1)
(b)
of the Act which
authorizes a peace officer to effect an arrest without a warrant. The
respondent conceded that assault with
intent to do grievous
bodily harm is not one of the offences referred in Schedule 1 but
argued that the assault in the present
instance a dangerous wound was
inflicted.
[7]
The court a quo reasoned that the police were entitled to arrest
without a warrant for ‘any offence, except the offence
of
escaping from lawful custody in circumstances other than
circumstances referred to immediately hereunder, the punishment
whereof
may be a period of imprisonment exceeding six months without
the option of a fine’. This approach overlooked the fact that
the respondent did not plead nor canvass this in evidence. The court
a quo
mero motu
raised it, without asking the parties to
address it on the subject. The appellant argued that it amounted to a
hearing by ambush
and referred to
Molusi & others v Voges N O
& others
2016 (3) SA 370
(CC) para 28 where Nkabinde J
observed that:
‘
The
purpose of pleadings is to define the issues for the other party and
the Court. And it is for the Court to adjudicate
upon the
disputes and those disputes alone. Of course, there are instances
where the court may, of its own accord (
mero
motu
),
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case as long as its consideration
on appeal involves no unfairness to the other party against whom it
is directed. In
Slabbert
[Minister of Safety and Security v Slabbert
[2010]
2 All SA 474
(SCA)] the Supreme Court of Appeal held:
“
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff
to plead a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial
court to have recourse to
issues falling outside the pleadings when deciding a case.”’
[8]
The evidence of Ms Ndala under cross-examination was that she was
entitled to arrest the appellant without a warrant because
she
suspected that he had committed an offence referred to in Schedule 1
of the Act. The respondent’s plea also averred that
the arrest
was effected in terms of s 40(1)
(b)
of the Act which reads
thus:
‘
40
Arrest by peace officer without warrant
A
peace officer may without warrant arrest any person –
…
whom
he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escape from lawful
custody.’
[9] It is common
cause that Schedule 1 does not include assault with intent to do
grievous bodily harm. It lists an offence of ‘assault
when a
dangerous wound is inflicted’. Therefore one of the
jurisdictional facts is absent. It cannot be said that Ms Ndala
entertained a reasonable suspicion that the listed offence had been
committed. It is trite that the arrestor must be a peace officer,
who
entertains a suspicion that the suspect committed an offence referred
to in Schedule 1 and that the suspicion must rest on
reasonable
grounds (see
Duncan v Minister of Law and Order
1986 SA (2)
805 (AD) at 818 G-J). The learned Judge in
Duncan
stated
further that ‘If the jurisdictional requirements are satisfied,
the peace officer may invoke the power conferred by
the subsection;
ie, he [or she] may arrest the suspect. In other words, he [or she]
then has a discretion as to whether or not
to exercise that power (cf
Holgate-Mohamed v Duke
[1948] 1 All SA ER 1054 (HL) at 1057).
No doubt the discretion must be properly exercised. But the grounds
on which the exercise
of such a discretion can be questioned are
narrowly circumscribed.’
[10]
In his plea the respondent did not rely on the relevant part of
Schedule 1, quoted above. Nothing was said about whether or
not the
wound inflicted was dangerous. There was no evidence by the
respondent that an investigation was carried out to ascertain
the
nature and extent of the wound. It was pointed out in
R
v Jones
1952 (1) SA 327
(E) at 332D-F that the concept ‘a dangerous
wound’ is not capable of easy definition. The court held that
‘by
a dangerous wound is meant one which itself is likely to
endanger life or the use of a limb or organ’; (see also:
Bobbert
v
Minister of Law and Order
1990
(1) SACR 404
(C) at 409e-h). The respondent’s lack of
entertaining a suspicion resting on reasonable grounds is further
exacerbated by
the fact that the medical report (J88) which was
presented before the court a quo was illegible and the original could
not be located,
for unexplained reasons. The court a quo
impermissibly speculated that
‘
[e]ven
though
the injuries were not legible in [the] J88 presented in court they
must have been legible in the original J88.’
[11] What is clear
is that the arresting officer relied on the statement by the
complainant and the J88 only, when she made the
decision to arrest.
Clearly, seen objectively, that was insufficient. The arresting
officer failed to investigate further the circumstances
of the
assault itself, whether the wound was inflicted intentionally or
whether it came about accidentally during the scuffle.
The nature and
the seriousness of the wound was never investigated. The arresting
officer wrongly assumed that the assault was
committed with intent to
do grievous bodily harm and that the offence is listed in Schedule 1.
Arrest without a warrant in these
circumstances was not lawfully
permissible. In my view the respondent failed to establish the
jurisdictional facts, in particular
that the appellant committed an
offence referred to in Schedule 1. I find that the appellant
succeeded to prove that the discretion
was exercised in an improper
manner. (See
Minister of Safety and Security v Sekhoto
2011
(1) SACR 315
(SCA) at para 46 and
Duncan
at 819B-D). I will
now deal with the second cause of action, the unlawful detention. The
malicious prosecution claim seems to have
been abandoned as it was
not argued before us.
[12] The appellant
claims that he was unlawfully detained for eight days, hence the
claim in the amount of R500 000 for general
damages. I am of the
view that the appellant was unlawfully detained for not more than two
hours. The evidence shows that he arrived
at the Sandton police
station after eight in the morning and that by ten am he had appeared
in court and had been remanded in custody.
I am of the view that what
happened in court and thereafter cannot be placed before the doorstep
of the respondent. My view is
fortified by what Harms DP said in
Sekhoto
at paras 42, 43 and part of para 44. For completeness
sake I prefer to quote the text fully:
‘
[42]
While it is clearly established that the power to arrest may be
exercised only for the purpose of bringing
the suspect to justice the
arrest is only one step in that process. Once an arrest has been
effected the peace officer must bring
the arrestee before a court as
soon as reasonably possible and at least within 48 hours (depending
on court hours). Once that has
been done the authority to detain that
is inherent in the power to arrest has been exhausted. The authority
to detain the suspect
further is then within the discretion of the
court.
[43]
The discretion of a court to order the release or further detention
of the suspect is subject
to wide-ranging ─ and in some cases
stringent ─ statutory directions. Indeed, in some cases the
suspect must be detained
pending his trial, in the absence of special
circumstances. I need not elaborate for present purposes save to
mention that the
Act requires a judicial evaluation to determine
whether it is in the interests of justice to grant bail, that in some
instances
a special onus rests on a suspect before bail may be
granted and the accused has in any event a duty to disclose certain
facts,
including prior convictions, to the court. It is sufficient to
say that if a peace officer were to be permitted to arrest only once
he is satisfied that the suspect might not otherwise attend the trial
then that statutory structure would be entirely frustrated.
To
suggest that such a constraint upon the power to arrest is to be
found in the statute by inference is untenable.
[44]
While the purpose of arrest is to bring the suspect to trial the
arrestor has a limited role in that process. He or she is not called
upon to determine whether the suspect ought to be detained pending a
trial. That is the role of the court (or in some cases a senior
officer). The purpose of the arrest is no more than to bring the
suspect before the court (or the senior officer) so as to enable
that
role to be performed.
It seems to me to follow that the enquiry
to be made by the peace officer is not how best to bring the suspect
to trial: the enquiry
is only whether the case is one in which that
decision ought properly to be made by a court (or the senior
officer). Whether his
decision on that question is rational naturally
depends upon the particular facts but it is clear that in cases of
serious crime
– and those listed in Schedule 1 are serious, not
only because the Legislature thought so – a peace officer could
seldom
be criticized for arresting a suspect for that purpose. ...’
(Emphasis added.)
[13]
The appellant alleged that ‘[t]he members of the SAPS
[respondent] wrongfully failed and/or unreasonably refused to release
the plaintiff [appellant] on bail; [a]s a result of the foregoing the
plaintiff’s further detention was unlawful’.
It is
incorrect that the police refused to release
the
appellant on bail, the arresting officer in fact recommended that the
appellant may be released on bail of R1000, which recommendation
was
in writing and formed part of the content of the docket. In her
evidence the arresting officer, Ms Ndala, said that on the
first
appearance, cases are usually postponed with no bail fixed. In my
view, what the arresting officer thought or believed was
irrelevant
as it was the duty of the presiding officer to address the question
of further detention or the fixing of bail. In terms
of s 35(1)
(e-f)
of the Constitution, ‘everyone has the right at the first court
appearance after being arrested, to be charged or to be informed
of
the reason for the detention to continue, or to be released; and to
be released from detention if the interests of justice permit,
subject to reasonable considerations’.
[14] It is well
established that the purpose of arrest is to bring the suspect to
court for trial. I agree with what Harms DP said
in
Sekhoto
,
that the arresting peace officer has a limited role in the process
that takes place in court. In my view presiding officers in
courts of
first appearance must ensure that the rights in s35(1)
(e-f)
of
the Constitution are not undermined. It is imperative for a presiding
officer to enquire from the prosecution why it is necessary
to
further detain a suspect. In that enquiry the reasons for further
detention will emerge as to whether or not it is in the interests
of
justice to further detain or release the suspect. This I say, mindful
of the provisions of s 12(1) of the Constitution which
deals with
freedom and security of the person and the right not to be deprived
of freedom arbitrarily or without just cause. Failure
to enquire at
the first appearance of the reasons for further detention is clearly
a contravention of the above constitutional
imperatives and therefore
the further detention of a suspect without just cause would be
arbitrary and unlawful. In my view the
police cannot be held liable
for the further detention, even if the arrest is found to have been
unlawful. What is critical is
that, the justice department would be
responsible and liable for the further detention because of its
failure to observe the constitutional
rights of a detained person.
[15]
In the present instance, the police recommended bail and took the
suspect to court within two hours of his arrest. It is the
complainant who set the law in motion by reporting a case of assault,
the police were doing their job by taking the suspect to
court. In my
view, the circumstances of this case are distinguishable from
The
Minister of Safety and Security v Tyokwana
2015 (1) SACR 597
(SCA). In
Tyokwana
the
complainant was a policeman who suspected and accused Tyokwana of
stealing his service firearm, while Tyokwana was busy washing
the
policeman’s vehicle. In para 39 of
Tyokwana
,
Fourie AJA said: ‘I believe that the question, whether the
orders of the magistrate remanding the respondent [Tyokwana]
in
custody and refusing him bail rendered his subsequent detention
lawful or not, has to be answered with regard to the peculiar
facts
of this case.’ The learned judge then proceeded to mention the
peculiar facts. He mentioned, amongst others, that the
complainant
knew that there was simply no evidence upon which Tyokwana could be
successfully prosecuted and he was aware that the
initial statements
of the state witnesses were obtained under duress and that they were
false. And further that Tyokwana had been
seriously assaulted at the
hands of the police. What is also striking is that at no stage did
this Court in
Tyokwana
refer
to
Sekhoto.
It
only referred to and distinguished
Isaacs
v Minister van Wet en Orde
1996
(1) SACR 314
(A) on which the Minister relied. In
Isaacs
,
this Court found that a detainee’s continued detention,
pursuant to an order of court remanded in custody in terms of s
50(1)
of the Act was lawful, notwithstanding the fact that it had followed
upon the detainee’s unlawful arrest. In
Isaacs
at
(323i-j) this court held that
Mthimkhulu
and another v Minister of Law and Order
1993
(3) SA 432
(E) at 438C-F was wrongly decided.
Mthimkhulu
expressed
a view contrary to mine in this matter. Therefore the decision in
Tyokwana
is distinguishable on the facts – it cannot be authority for
the proposition that the further detention of the appellant
by the
court, in this case, was unlawful because the arrest was unlawful. I
am of the view that the respondent cannot be held liable
for what
transpired in court just because the arrest was unlawful. To do so
would be legally untenable and would be contrary to
well established
precedent in this court, to which I have referred. I shall now
deal with the question of quantum.
[16] The respondent
can only be held liable for the detention of two hours until the
appellant appeared in court. The amount of
damages is limited to the
detention for two hours. The appellant was called telephonically to
report at the police station. When
he did, the allegations against
him were explained and, upon being asked if he wished to make a
statement, he declined and elected
to make one in court. He spent
about two hours or so in the police station, he was never locked up
in a holding cell. He was almost
immediately transported to court,
where he was called to appear in a very short time after his arrival.
Even he was surprised that
he was called before other suspects whom
he found there. Everything went so fast he himself could not believe
it.
[17]
It is not as if the appellant was falsely framed with assault
charges. It was the complainant who withdrew the charges and
not the
state. In my view the suffering was minimal. The deprivation of
liberty and freedom in this case was highly technical in
that the
police failed to obtain a warrant of arrest. It has to be borne in
mind that, as was said in
Tsose
v
Minister of Justice
1951
(3) SA 10
(A) at 17H, ‘there is no rule of law that requires
the milder method of bringing a person into court to be used whenever
it would be equally effective’. The arrest and methodology used
is fact based. As compensation for the appellant, a sum of
R30 000
would be appropriate in the circumstances.
[18] With regard to
costs, although the total quantum awarded is far below the
jurisdiction of the high court, the matter concerned
the unlawful
deprivation of the appellant’s liberty and he was justified in
approaching the high court. I therefore would
uphold the appeal with
costs.
[19] In the result,
the following order is made:
1
The appeal is upheld with costs.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
The defendant is ordered to pay the plaintiff the sum of R30 000
for general damages.
(b)
The defendant is ordered to pay interest
a tempore morae
on
the sum of R30 000 from date of summons.
(c)
The defendant is ordered to pay the plaintiff’s costs of suit.’
_______________________
J
B Z Shongwe
Acting
Deputy President Supreme Court of Appeal
Rogers
AJA (Leach JA concurring)
[20]
I
agree with Shongwe ADP that the appellant’s arrest was unlawful
but I disagree with his assessment of damages. In my view
it is not
correct, in the circumstances of this particular case, to disregard
the appellant’s detention from the time of
his appearance in
court on 21 December 2012 to his release on 28 December 2012.
[21]
In
regard to the unlawfulness of the arrest, the court a quo’s
judgment is not a model of clarity but it seems to have found
the
arrest lawful on the basis (a) that, in terms of
s 40(1)
(b)
of
the
Criminal Procedure Act read
with Schedule 1, a warrantless arrest
is permissible inter alia in respect of any offence for which a
punishment exceeding six
months’ imprisonment without the
option of a fine may be imposed; and (b) that assault with intent to
cause grievous bodily
harm (the offence with which the appellant was
charged) was an offence for which such a punishment could be imposed.
Perhaps because
this justification for the arrest was not pleaded or
the subject of any argument below, the court a quo was not alerted to
this
court’s decision in
Areff
v Minister van
Polisie
1977
(2) SA 900
(A) where it was held (at 913B) that the part of
Schedule 1 on which the court a quo relied applied only to statutory
offences.
[22]
Accordingly,
and on appeal, the respondent’s counsel did not rely on the
court a quo’s reasoning. The respondent’s
counsel also
conceded, correctly, that assault with intent to cause grievous
bodily harm is not an offence for which a warrantless
arrest is
permissible. The respondent’s counsel instead argued that in
terms of Schedule 1 a warrantless arrest is permissible
in the case
of ‘assault, when a dangerous wound is inflicted’ and
that this was such a case. For several reasons, the
argument cannot
succeed:
(a)
First, this justification for the arrest was not pleaded.
(b)
Second, and perhaps because of (a), the question whether the wound
suffered by the complainant was a ‘dangerous
wound’, as
that term has been interpreted in case law (a wound endangering life
or limb), was not canvassed in the evidence.
Such evidence as there
was did not tend to show that the complainant’s wounds amounted
to ‘dangerous wounds’.
The J88 form, which might have
shed some light on the subject, was illegible. A new point cannot be
raised on appeal unless the
court is satisfied that all the evidence
bearing on it was ventilated.
(c) Third,
the arresting officer, Ms Ndala, did not testify that she held the
suspicion that the appellant had inflicted
a ‘dangerous wound’.
The suspicion she held was that the appellant had committed assault
with intent to cause grievous
bodily harm. The suspicion justifying a
warrantless arrest in terms of
s 40(1)
(b)
is not an
abstract reasonable suspicion but an actual suspicion. If the
arresting officer did not hold the relevant suspicion,
it is
irrelevant that such a suspicion – if it had been held –
would have been a reasonable one.
(d) Finally,
even if Ms Ndala had suspected the appellant of inflicting a
‘dangerous wound’, the respondent
did not discharge the
onus of proving that the suspicion was reasonable.
[23]
In
regard to the assessment of damages, there are certain parts of the
evidence to which I need to draw attention before examining
the legal
position. The appellant voluntarily attended at the police station
after receiving a telephone call from an officer.
At the police
station he gave them the addresses where he resided and was employed.
There is a factual dispute as to whether he
was invited to give his
side of the story. He testified that he was not asked. Ms Ndala
testified that the appellant told her he
would give his version in
court. Be that as it may, while he was at the police station the
appellant tried to contact a lawyer
but was unable to do so.
[24]
Shortly
after his arrest he was taken to the Randburg court. He was placed in
a holding cell with others but his case was quickly
called. When
asked what happened in court, he said it was very brief. The
presiding officer told him he was going to prison. He
asked her to
explain and she repeated that he was going to prison. He was taken
down again and transported to prison. Before being
brought again
before court, he was released pursuant to the withdrawal of the
charge.
[25]
Ms
Ndala took the docket to the Randburg court but was not present when
the appellant’s case was called. Included in the docket
was her
recommendation that the appellant be granted bail of R1000. She was
asked in cross-examination if she knew whether or not
there had been
a bail application. Her reply was: ‘No, there is no bail
application done in the first appearance. After the
first appearance
the case is postponed for seven days for a bail application.’
She confirmed that, despite her recommendation
for bail, she knew
that he would not receive bail at his first appearance.
[26]
In
terms of
s 50(1)
(c)
of the
Criminal Procedure Act an
arrested person against whom a
charge has been brought and who has not been granted bail by the
police must be brought before a
lower court as soon as reasonably
possible but not later than 48 hours after the arrest. It was held in
Isaacs
v
Minister
van Wet en Orde
1996
(1) SACR 314
(A) that the ‘arrest’ contemplated in this
provision includes an unlawful arrest.
Isaacs
was,
like the present matter, a case of damages for unlawful arrest and
detention. And like the present matter, an issue in the
assessment of
damages was whether regard should be had to the claimant’s
detention after his first appearance in court. The
claimant’s
counsel relied on only one ground for his contention that it should,
namely that, because the arrest had been
unlawful, the claimant’s
remand in custody by the court had been unlawful. That proposition
was, as I have said, rejected.
[27]
In
Minister
of Safety and Security v Tyokwana
2015
(1) SACR 597
(SCA) this court clarified that
Isaacs
should
not be understood as holding that an arrested person’s
detention in custody after his first appearance is automatically
lawful. The unlawful arrest does not preclude a lawful remand in
custody but by the same token not every remand in custody will
be
lawful (para 38). Having regard to the particular facts of the case,
this court in
Tyokwana
held
that the appellant’s further detention was unlawful.
[28]
Although
in
Tyokwana
the
further detention was found to be unlawful, the court did not
consider whether the unlawfulness of the further detention was
a
necessary prerequisite for taking into account, when assessing
damages for the unlawful arrest, the period of detention following
the first judicial remand of the case. The point was not raised and
the authorities bearing on it were not discussed. The unlawfulness
of
the detention following the first judicial remand would obviously be
an essential element of a claim brought against the Minister
of
Justice for the wrongful conduct of the prosecutor or the magistrate.
It is less obvious why, in a claim against the Minister
of Police for
unlawful arrest, the unlawfulness of the detention following the
first judicial remand should be essential before
one can take that
period into account in assessing damages.
[29]
Subject
to the usual rules of delictual liability, a wrongdoer is liable for
all the harmful consequences of his or her wrongful
act. As will
become apparent later, the content of the fault requirement may play
a role in limiting liability but for the moment
I shall focus on the
elements of factual and legal causation. Factual causation is tested
by asking whether the harmful consequence
would have occurred but for
the wrongful act. Legal causation (or remoteness of damage) places a
policy-based limit on the factual
consequences for which the
wrongdoer is held liable.
[30]
The
test for legal causation is supple, consistent with its foundation of
public policy. Before this supple test was authoritatively
established, there were conflicting views as to how to test for legal
causation, the main competing views being the direct consequences
test and the foreseeability test (P Q R Boberg
The
Law Delict
439-448).
This court has held that, in applying the supple test, a court should
have regard to these and other tests but should
not apply them
dogmatically. In a recent affirmation of the approach, this court
said the following in
Merchant
Commercial Finance (Pty) Ltd v Katana Foods CC
(1238/2016)
[2017] ZASCA 191
(20 December 2017) para 22 (citation of authority
omitted):
‘
Turning
to the question of legal causation (or remoteness of damage as it is
sometimes called), the issue is one to be determined
by
considerations of policy. It serves as a measure of control to ensure
that liability is not extended too far. It recognises
that liability
should not be imposed where, despite the other elements of delictual
liability being present, right-minded persons,
including judicial
officers, will regard it as untenable to do so. In determining
whether damage is too remote, tests involving
foreseeability,
proximity, direct consequences, all of which are relevant, ‘should
not be applied dogmatically, but in a
flexible manner so as to avoid
a result which is so unfair or unjust that it is regarded as
untenable.’
[31]
Even
if the claimant satisfies the direct consequences test and the
foreseeability test, there may be cases in which, for policy
reasons,
liability will be limited. So, for example, in
mCubed
International (Pty) Ltd & another v Singer NO & others
[2009]
ZASCA 6
;
2009 (4) SA 471
(SCA) Brand JA said the following:
’
31.
But our courts have decided against a strict approach to the
remoteness issue. Instead, it adopted what has been described
as a
'flexible' or 'supple' test (see eg
International
Shipping Co (Pty) Ltd v Bentley (supra)
701A-F;
Smit v Abrahams
1994
(4) SA 1
(A) 15E-G). This was elaborated upon as follows in
Fourway
Haulage (supra)
para 34:
“
What
Van Heerden JA said in that case [ie
S v
Mokgethi
1990
(1) SA 32
(A) at 40I-41D] is not that the 'flexible' or 'supple' test
supersedes all other tests such as foreseeability, proximity or
direct
consequences, which were suggested and applied in the past,
but merely that none of these tests can be used exclusively and
dogmatically
as a measure of limitation in all types of factual
situations. Stated somewhat differently: the existing criteria of
foreseeability,
directness, et cetera, should not be applied
dogmatically, but in a flexible manner so as to avoid a result which
is so unfair
or unjust that it is regarded as untenable.”
32. Strict
application of both the foreseeability test and the direct
consequences test for remoteness in this case would
therefore, in my
view, lead to a result which is so unfair and unjust that it will be
regarded as untenable. This is therefore
a classic example of a
situation where a flexible approach is indicated. And in adopting
that approach I find the loss too remote.’
[32]
A
moment’s reflection will reveal that there are many cases where
the act of a third party, itself having causal effect, intervenes
between the act of the wrongdoer and the harmful consequence but
where the wrongdoer is still held liable for the harmful consequence.
This may be so whether the act of the third party is lawful or
unlawful. For example, the wrongdoer who injures a person so that
the
victim requires surgery may be liable if the victim dies during the
course of lawful surgery. Or a driver who negligently creates
a
dangerous situation may be liable for harm suffered by a victim even
though the immediate cause of the victim’s harm is
a second
driver who did not exercise reasonable care in the dangerous
situation. One does not, in these cases, automatically conclude
that
the wrongdoer is not liable. Rather, one asks whether, in accordance
with the well established requirements for delictual
liability, the
wrongdoer can be held responsible for the harmful consequence.
[33]
There
is no reason for not following the same approach in determining the
harmful consequences of an unlawful arrest for which the
police may
be held liable. There is certainly no justification, in the
constitutional era, for applying a stricter and less generous
test.
On the contrary, in applying the conventional tests, in particular
those which are policy-based, regard must be had to the
values of the
Constitution and to the fact that s 12(1)
(a)
of the Constitution guarantees to everyone the right to freedom and
security of the person, including the right not to be deprived
of
freedom arbitrarily or without just cause. In
Zealand
v Minister of Justice and Constitutional Development
[2008] ZACC 3
;
2008
(4) SA 458
(CC), s 12(1)(a) was the foundation for a finding
that detention pursuant to apparently valid court orders was
unlawful.
[34]
In
Woji
v Minister of Police
2015
(1) SACR 409
(SCA) this court applied
Zealand
in
circumstances where a police officer arrested a suspect and testified
at his bail hearing. In consequence of the officer’s
evidence,
the magistrate refused bail. In regard to the arrest, this court
found that the officer had reasonable grounds for believing
that the
suspect had committed armed robbery, an offence for which a
warrantless arrest was permissible. The arrest was thus lawful.
When
testifying at the bail hearing, however, the officer said that the
suspect was among four men he had been able to identify
on video
footage of the robbery. In fact it was not possible to identify the
suspect from the footage (though the officer, when
arresting the
suspect, had certain other information, not mentioned during the bail
hearing, which fortified his suspicion).
[35]
This
court held that the officer had been under a public law duty not to
violate the suspect’s freedom, a duty the officer
should have
discharged either by not opposing bail or by placing all the
available facts before the magistrate. He negligently
breached this
duty (the officer was absolved of malice). Since the officer’s
evidence was the factual cause of the magistrate’s
decision,
and since his wrongful conduct was sufficiently closely connected to
the subsequent detention to satisfy the requirement
of legal
causation, the Minister was held liable for the 13-month period of
detention which followed the refusal of bail, such
period of
detention being regarded as unlawful for purposes of a delictual
claim for damages (paras 28-32).
[36]
Although
the court in
Tyokwana
and
Woji
spoke of the further detention as being unlawful, it seems to me,
with respect, that in a delictual claim for damages one is concerned
with the lawfulness or otherwise of the conduct of the defendant
rather than with the so-called lawfulness of the consequences
flowing
from such conduct. If a person dents my car by negligently driving
into it, it is his driving, not the dent, which is unlawful.
In
Woji
,
for example, the conduct of the magistrate was, for delictual
purposes, lawful, since he made a decision within his jurisdiction
in
accordance with evidence placed before him. The conduct of the
investigating officer, however, in negligently giving evidence
which
resulted in the suspect losing his liberty, was wrongful. In relation
to the wrongful conduct of the officer, the detention
which the
suspect suffered in consequence of the judicial order was a harmful
effect caused by, and not too remote from, the officer’s
wrongful conduct.
[37]
It
thus appears to me that the approach of Van Rensburg J in
Thandani
v Minister of Law and Order
1991
(1) SA 702
(E) was correct. There the plaintiff was arrested by the
South African police and detained in South Africa for a few hours
before
being handed over to members of the Ciskeian police who took
him into Ciskei (then regarded as an independent country) and
detained
him for about two months. It was conceded that the South
African arrest was unlawful but it was argued that the South African
police
could not be held responsible for the detention after the
plaintiff was handed to the Ciskeian police. The court rejected this
argument. Van Rensburg J correctly directed himself to the
requirements of factual and legal causation, holding that both were
satisfied. He was also right to say that it was irrelevant whether
the plaintiff’s detention in the Ciskei was or was not
lawful
(706G-H). The point was that his detention in Ciskei arose out of the
unlawful arrest and detention in South Africa (706F-H).
The learned
judge cited an unreported judgment by Howie J to similar effect
(705H-706C).
[38]
The
decision in
Thandani
was
confirmed on appeal in
Minister
of Law and Order v Thandani
[1991] ZASCA 123
;
1991
(4) SA 862
(A). Joubert JA, in a terse judgment, said that although
on the probabilities it seemed that the plaintiff’s detention
in
Ciskei was unlawful, it was irrelevant to the plaintiff’s
case whether or not this was so (872A-B).
[39]
I
return now to the present case. In regard to the appellant’s
detention following the judicial remand, the test of factual
causation is plainly established. But for the unlawful arrest, the
appellant would not have been brought before the court and there
would have been no occasion for the court to remand him in custody.
As to legal causation, the direct consequences test is satisfied.
It
was a legal requirement, once the appellant was arrested, that he be
brought before court. The court could only make one of
two decisions
– remand him in custody or grant him bail. Either of these
outcomes would be a direct consequence of the arrest.
As to
foreseeability, each of the two possible consequences of the arrest
would be foreseeable to the arresting officer. Indeed,
Ms Ndala
actually foresaw what would happen – that the appellant would
be remanded in custody until his next appearance.
[40]
Despite
compliance with these two tests, there may be reasons of policy for
not holding the police liable for further detention
where a court has
judicially considered whether the suspect should be granted bail and
has come to a conclusion that the suspect
should not be released. In
jurisdictions where the direct consequences test prevails (or used to
prevail), a court might treat
an intervening judicial adjudication as
breaking the causal chain between the arrest and further detention.
Harnett
v Bond
[1924]
2 KB 517
(CA) and
[1925] AC 669
(HL) was a remarkable case where a
sane man was detained in various asylums for nine years. The question
was whether the doctor
who first caused him to be unlawfully detained
could be held liable for the entire period of detention, even though
the man was
subjected to various subsequent assessments by other
doctors. The trial judge directed the jury in accordance with the
direct consequences
test, advising them that it was open to them to
hold that the failure by intervening doctors to appreciate that the
claimant should
not be further detained did not break the causal
chain between the first doctor’s unlawful act and the nine-year
detention.
This is what the jury held but the Court of Appeal
reversed the decision and the House of Lords confirmed the Court of
Appeal’s
judgment. In the Court of Appeal Scrutton LJ expressed
himself as follows (565):
‘
There
is no doubt that the question whether damages are too remote is one
of degree, and that it is very difficult to say exactly
where the
line is to be drawn. . .. Again there is no doubt that the action of
a third party does not necessarily break the chain
of causation and
make subsequent damage too remote. . . .. But it appears to me that
when there comes in the chain the act of a
person who is bound by law
to decide a matter judicially and independently, the consequences of
his decision are too remote from
the original wrong which gave him a
chance of deciding. It was on this principle that in
Lock
v Ashton
it
was decided that a defendant who had wrongfully taken a person into
custody and brought him before a magistrate was not liable
for the
subsequent remand by the magistrate, which was a judicial act.
Applying this principle I am clearly of opinion that the
liability of
either defendant for damages stops when the damages only continued by
the independent act of a person under a legal
duty to form an
independent opinion.’
[41]
The
case cited by Scrutton LJ,
Lock
v Ashton
[1848] EngR 878
;
(1848)
12 QB 871
;
[1848] ER 878
, is an ancient decision though it was
approved in
Diamond
v Minister & others
[1941]
1 All ER 390.
For two reasons, however, one must be cautious about
looking to English cases for guidance on the question which arises in
the
present case. First, the English law relating to remoteness of
damage is not the same as ours. Second, in English law unlawful
arrest and detention (usually styled false imprisonment) is a species
of the tort known as trespass, which has peculiar features
of its
own. These features affect the approach in Commonwealth jurisdictions
whose common law is based on English law.
[42]
To
label an intervening act as a novus actus interveniens (language
redolent of the direct consequences test of remoteness) is really
to
apply a value or policy judgment since it is impossible, by applying
any absolute objective test, to say whether an intervening
act
‘breaks the causal chain’ and is thus a novus actus
interveniens. In
Harnett
the intervening acts did not break the chain of factual causation.
The court, though it did not say so in terms, was applying a
policy-based limitation by regarding the intervening medical
assessments as rendering the resultant detention too remote from the
first wrongdoer’s conduct. In their famous work on causation,
Professors Hart and Honoré say that the distinction
in such
cases is not between voluntary and non-voluntary intervening acts but
‘between routine and the independent exercise
of a discretion’
(H L Hart and Tony Honoré
Causation
in the Law
2
ed at 159).
[43]
In
South Africa liability for non-patrimonial damages for wrongful
arrest and detention is governed by the actio iniuriarum, which
is a
general action relating to infringements of personality rights, of
which liberty is one. The principles of liability are general
but for
reasons of policy some distinctions are drawn. For present purposes,
the following two should be noticed:
(a)
In the case of wrongful arrest it is not necessary that the
arrester should have been aware of the wrongfulness of his
or her
action. The intention to arrest and detain suffices, so in a sense
the liability is strict. Even if this position was initially
adopted
under the influence of English law, it can be justified on policy
grounds (
Minister of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at
154B-157B).
(b) Where
the claimant is detained pursuant to a valid judicial process at the
instigation of an alleged wrongdoer who
does not himself effect the
arrest, it is in keeping with the policy of the law that animus
iniuriandi in its full sense should
be proved in order to hold the
instigator liable. This means that the claimant must prove not only
that the proceedings were instigated
without reasonable and probable
cause but that the defendant knew this to be so. Although, under the
influence of English law,
this is sometimes called malicious arrest
(or malicious deprivation of liberty), the concept of ‘malice’
should be
understood in accordance with the principles of the actio
iniuriarum (J Neethling, J M Potgieter and P J Visser
Neethling’s Law of Personality
2 ed 124-125). (In the
light of the Constitution and this court’s decision in
Woji
,
the common law position may now have been relaxed so that, at least
in some circumstances, negligence will suffice. This is not
a
question on which I need express any opinion. In what follows, my
references to the requirement of full animus iniuriandi must
be read
subject to this possible relaxation.)
[44]
Where
there is an unlawful arrest by a police officer followed by a
judicial remand, one may appear to have a combination of (a)
and (b).
However in such a case the police officer already commits a wrongful
act by arresting and detaining the suspect. One thus
needs to balance
the policy considerations underlying the requirement of full animus
iniuriandi in case (b) with the general
principle that the
wrongdoer in case (a) should be liable for all those consequences of
his or her wrongful act that are not too
remote. In my view, that
balance is appropriately struck by holding that an arresting officer
is not liable for detention ordered
by a court pursuant to a
deliberative or considered judicial process unless the arresting
officer has the full animus iniuriandi
required for malicious
deprivation of liberty. The requisite animus iniuriandi might be
present at the time of the arrest or might
come into existence
afterwards. Either way, in such a case one is dealing with two
wrongful acts, namely the wrongful arrest and
the malicious
deprivation of liberty (ie instigating the judicial detention). If
the requirements for malicious deprivation of
liberty are absent, the
policy-based element of remoteness would exclude liability for harm
caused by an intervening deliberative
judicial process, even though
further detention might be foreseeable and a direct consequence of
the wrongful arrest.
[45]
I have
used the expression ‘deliberative judicial process’
because in my view there are no reasons of policy for disregarding,
in the case of wrongful arrest, those harmful consequences which flow
from the arrest mechanically or as a matter of routine. In
Harnett
the
court appears to have regarded the intervening decisions of the
doctors as considered opinions (right or wrong) formed pursuant
to a
statutory duty.
Lock
v Ashton
[1848] EngR 878
;
(1848)
12 QB 871
;
[1848] ER 878
, the false imprisonment decision mentioned
in
Harnett,
was also such a case; the magistrate remanded the plaintiff in
custody after hearing witnesses. Only where a judicial officer has
applied his or her mind to the question whether the suspect is
entitled to bail does one have an intervening act which can be said,
from the perspective of policy, to neutralise the harmful effect of
the wrongful arrest.
[46]
The
decision of this court in
Minister
of Safety and Security v Sekhoto & another
[2010]
ZASCA 141
;
2011 (5) SA 367
(SCA), from which my colleague quotes in
his judgment, is not in my respectful opinion contrary to the
conclusion I have reached.
That case was not concerned with the
question whether the defendant could be held liable for detention
following judicial remand
but with whether the arrest itself was
unlawful. In discussing the discretion which a peace officer has once
the jurisdictional
requirements for a warrantless arrest have been
satisfied, Harms DP said that the purpose of the arrest is not so
much to bring
the accused to trial but to allow the court before whom
the suspect must be brought to decide whether the suspect should be
detained
pending a trial. The rational exercise of the discretion to
arrest thus requires the officer to assess whether the case is one
where the court, rather than the police, should decide whether the
accused should be detained pending his trial. Harms DP emphasised
that the accused’s further detention is ‘within the
discretion of the court’ (para 42) and that the court’s
discretion ‘requires a judicial evaluation to determine whether
it is in the interests of justice to grant bail’ (para
43). In
my opinion it is this ‘judicial evaluation’ which, from
the perspective of legal causation, renders subsequent
detention too
remote to be taken into account as a consequence of the unlawful
arrest.
[47]
It is
the absence of an intervening evaluative act of this character that
is the distinguishing feature of this case. We must have
regard to
the facts to determine whether, as a matter of policy, the liability
of the police for this particular arrest should,
in the absence of
full animus iniuriandi, terminate with the particular judicial remand
which occurred on 21 December 2012. True,
in terms of
s 60(1)
(c)
of the
Criminal Procedure Act it
was the duty of the magistrate, if
the question was not raised by the appellant or the prosecutor, to
ascertain from the appellant
whether he wished the court to consider
his release on bail. It is clear from the appellant’s evidence
that the question
of bail was not raised by the prosecutor or by the
magistrate. If the question of bail had been raised, it seems
inconceivable
that the appellant would not have been released,
because there was in the docket a recommendation for release.
[48]
It is
thus apparent that there was no considered decision by the magistrate
as to whether the appellant should be released on bail.
On the
evidence of the appellant (and there is no other evidence on the
question), the prosecutor and the magistrate failed to
comply with
their duties. The appellant was not legally represented and was
overwhelmed by the circumstances. The picture created
by his evidence
is of a high-volume remand court in which accused persons were
brought up and down from the cells with great rapidity.
[49]
As I
have said, the appellant’s detention following the judicial
remand was a direct consequence of the arrest. Was it foreseeable
to
the arresting officer? We have the answer from her own mouth. Not
only was it foreseeable; she did in fact foresee it. She knew
that
the Randburg court would not deal with the question of bail at the
first appearance and that the appellant would be remanded
in custody.
In other words, she knew that at the first appearance the remand
would be a routine or mechanical act rather than a
considered
judicial decision. She may not have ‘wished’ the
appellant to be further detained but in law she intended
that result
– a person is presumed to intend the natural consequences of
his or her actions (
Warner
Lambert SA (Pty) Ltd v Commissioner for the South African Revenue
Service
[2003]
ZASCA 59
;
(2003) 65 SATC 347
para 14). It is generally accepted that
intended consequences, however strangely they may come about, can
never be too remote to
attract legal liability (Boberg op cit 440 and
450;
Thandani
supra
in the court a quo at 705F-G). This is hardly a case where one can
say that to hold the police liable for the full period
of detention
would be ‘so unfair or unjust that it is regarded as untenable’
(
mCubed
supra
para 32). On the contrary it would in my opinion be unfair and unjust
for the police not to be so liable on the facts of this
particular
case.
[50]
For
reasons I have explained, I do not think it is necessary, in a
delictual setting, to say that the detention following the judicial
remand was ‘unlawful’ before one can conclude that it is
a harmful effect for which the wrongful arrester can be held
responsible. But if such a finding were necessary, I would be
prepared to say that what happened in court on 21 December 2012 was
unlawful and resulted in the appellant being deprived of his freedom
arbitrarily and without just cause. On the appellant’s
evidence, what happened was a shocking violation by the prosecutor,
the magistrate and indeed the investigating officer of their
duties
to ensure that the question of bail was properly considered at the
appellant’s first appearance. Detention in prison
for a week is
no small matter. Had the question of bail been considered by any of
the officials concerned, it would immediately
have been apparent that
there was no justification not to grant the appellant bail in a
modest amount. This was not a case where
remand in custody pending
further investigation could ever have been warranted.
[51]
I thus
consider that the appellant’s damages should be assessed with
reference to the full period of his detention. The period
of
detention was seven nights, extending into an eighth day. The
appellant found the experience very distressing. At the holding
cells
in Randburg his cellphone was confiscated and he never saw it again.
After he was remanded in custody, he was handcuffed
and taken to
prison in a bus. He found jail a very intimidating experience. He
testified that he cried almost the whole time. His
period of
incarceration included Christmas and Boxing Day. This was the period
during which his son was meant to have been with
him. He paid R450 as
protection money to a fellow prisoner who could make prison life more
bearable.
[52]
By
agreement various documents relating to quantum were handed up in the
court a quo without the need for oral evidence. Among these
documents
was a report by a clinical psychologist. According to the report, the
appellant told the psychologist that he lost eleven
kgs while in
prison. Upon his release he was full of bites (presumably from fleas
or lice) and did not sleep well for about two
months. Whenever he
applied for a job, there was a standard question as to whether he had
ever been arrested, which made finding
work difficult. He now feels
completely intimidated by the police. The psychologist’s
impression was that the appellant was
under-reporting the severity of
persisting sequelae of the arrest and incarceration. The psychologist
considered that the appellant
had become socially withdrawn; was more
anxious than before; and appeared to be suffering from mild
depression.
[53]
The
psychologist recommended at least thirty psychotherapeutic
consultations at a reasonable cost of R1000 per hourly session. An
actuarial report, also handed in by agreement, gave the capitalised
present value of this treatment at R30 248. During the
appeal
the respondent’s counsel did not argue that, if we were to have
regard to the entire period of detention, the cost
of the future
treatment should not be awarded. These patrimonial damages are
recoverable not under the actio iniuriarum but under
the aquilian
action. Although the appellant did not prove that Ms Ndala knew she
was arresting him unlawfully, I am satisfied that
she was negligent
and that the respondent should be liable for the patrimonial damages
[54]
In
regard to non-patrimonial damages, the appellant’s counsel
referred us to two judgments emanating from the same division
as the
court a quo. In each case the period of detention was nine days (
Duma
v Minister of Police & another
(41429/2011)
[2016] ZAGPPHC 428 (13 June 2016);
Mokaedi
v Minister of
Police & another
(3503/2012)
[2016] ZAGPPHC 405 (3 June 2016). Amounts of R300 000 and
R250 000 respectively were awarded in 2016. Since
judgment in
the court a quo was delivered in 2016, these provide a fair range for
the appellant’s general damages. In
Mokaedi
Makgoka J, in
moderating his award, took into account that the claimant, a warrant
officer in the police, had been kept in a single
cell with adequate
bedding and that the main harm he had suffered was the deprivation of
liberty. Although the appellant’s
detention was marginally
shorter than in
Duma
and
Mokaedi
,
the conditions of his incarceration were distinctly harrowing. I
think an amount of R300 000 would be appropriate.
[55]
Since
the general damages and medical expenses have been expressed in the
value of money as at the date of court a quo’s judgment,
mora
interest should not run from an earlier date. In regard to costs,
summons was issued in October 2014. With effect from 1 June
2014 the
monetary jurisdiction of regional divisions of the magistrates’
courts was increased from R300 000 to R400 000.
The amount
I would award falls within the increased jurisdiction of regional
divisions. However, it was not unreasonable for the
appellant to
bring proceedings in the high court, given the nature of the claim
and the uncertainty as to the award of general
damages. The
respondent’s counsel did not argue that we should award costs
on the magistrate’s court scale.
[56]
I
would thus make the following order:
(a) The
appeal is upheld with costs.
(b) The
order of the court a quo is set aside and replaced with an order in
the following terms:
(i) The
defendant is ordered to pay the plaintiff the amount of R330 248,
together with interest at the prescribed rate
from 7 September 2016
to date of payment.
(ii) The
defendant is further ordered to pay the plaintiff’s costs of
suit, including the qualifying costs of the experts
Trevor Reynolds
(psychologist) and Johan Sauer (actuary).
______________________
O L Rogers
Acting Judge of
Appeal
Appearances
For
the Appellant:
S J Myburgh
Instructed by:
Pieter Nel
Attorneys, Pretoria;
Honey &
Partners, Bloemfontein
For
the first Respondent:
M
S Phaswane (with him D D Mosama)
Instructed by:
The State Attorney,
Pretoria;
The State Attorney,
Bloemfontein