CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 88/20
In the matter between:
J E MAHLANGU First Applicant
I T MAILELA N.O. Second Applicant
and
MINISTER OF POLICE Respondent
Neutral citation: J E Mahlangu and Another v Minister of Police [2021] ZACC 10
Coram: Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron
J, Tshiqi J and Victor AJ.
Judgments: Tshiqi J (unanimous)
Heard on: 12 November 2020
Decided on: 14 May 2021
Summary: Delict — Judicial detention — damages — inadmissible
confession induced by assault extracted by police from accused
person — liability of the Minister of Police for detention
subsequent to first court appearance
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa):
1. Leave to appeal is granted.
2. The appeal against the order of the Supreme Court of Appeal is upheld to the
extent reflected below.
3. Paragraph 2(b)(i) and (ii) of the order of the Supreme Court of Appeal is set
aside and substituted with the following order:
“The first defendant is ordered to pay:
(i) An amount of R550 000 to the first plaintiff;
(ii) An amount of R500 000 to the second plaintiff;
(iii) The above amounts are to be paid with interest at the prescribed rate
from date of the judgment of the High Court, being 26 September
2014;
(iv) Costs of suit, including the costs of two counsel.”
4. The respondent must pay the costs of the appeal, including the costs of two
counsel.
JUDGMENT
TSHIQI J (Jafta J, Khampepe J, Madlanga J, Ma thopo AJ, Mhlantla J, Theron J and
Victor AJ concurring):
Introduction
[1] This is an application for leave to appeal against a portion of the judgment and
order of the Supreme Court of Appeal. What arises for determination is whether the
TSHIQI J
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Supreme Court of Appeal was correct in refusing to hold the Minister of Police liable
to compensate the first applicant (Mr Johannes Eugen Mahlangu) and the second
applicant (the representative of the deceased estate of the late
Mr Phanie Johannes Mtsweni)1 for damages flowing from the entire period of Messrs
Mahlangu and Mtsweni’s detention following their unlawful arrest. A related question
is whether the Supreme Court of Appeal was correct in holding that a failure by an
accused person to apply for bail after an unlawful arrest and detention relieves the
Minister of the onus to prove the lawfulness of the detention for the entire period.
[2] The detention occurred after the police unlawfully arrested Mr Mahlangu and
obtained a false confession from him through torture and coercion. They used the false
confession as a basis to arrest the late Mr Mtsweni. Lieutenant Mthombeni, the
investigating officer, then cunningly engineered Messrs Mahlangu and Mtsweni’s
continued detention by misrepresenting the true state of affairs to the prosecutor. As a
result, they were refused bail on their first appearance in the Magistrates’ Court on
31 May 2005. According to the Supreme Court of Appeal, the liability of the Minister
ceased when the Magistrate ordered their further detention during their second court
appearance on 14 June 2005, on which date, according to the Supreme Court of Appeal,
Messrs Mahlangu and Mtsweni ought to have applied for, and would have been granted
bail.
Background facts
[3] On 25 May 2005 and at Middelburg four family members being a father, a
mother and their two children were brutally murdered. One of the children was a little
girl who was also savagely raped. A third child, a three-year-old girl, survived the
ordeal. A case of murder, rape and robbery was opened. On 27 and 28 May 2005,
Lieutenant Mthombeni took statements from various persons who had “fruitlessly
visited the house of the deceased persons” and had discovered the dead bodies. He also
1 Mr Mtsweni passed away before the trial in the High Court was finalised and the second applicant was appointed
as a representative of his estate in terms of section 18(1) of the Administration of Estates Act 66 of 1965.
TSHIQI J
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took statements from one of the police officers who first attended the scene of the
crimes. These witnesses did not implicate anyone in the crimes.
[4] On the morning of Sunday, 29 May 2005, Lieutenant Mthombeni and three of
his colleagues went to Mr Mahlangu’s home where they found him with his partner,
their baby and his uncle. Despite the fact that he had no basis whatsoever for suspecting
that Mr Mahlangu was involved in the commission of the crimes he was investigating,
Lieutenant Mthombeni arrested Mr Mahlangu without a warrant. He did not advise him
of his rights in terms of the Constitution.
[5] Lieutenant Mthombeni and his colleagues took Mr Mahlangu to the office of the
Serious Violence and Organised Crime Unit in Middelburg. They interviewed him and
he denied any knowledge of the crimes. In order to force him to admit that he had
committed the crimes, they placed his legs in irons, handcuffed his hands behind his
back and repeatedly suffocated him by placing a rubber tube or a plastic bag over his
head. This lasted for several hours. Mr Mahlangu ultimately succumbed and confessed
to crimes he had not committed. When asked how he killed the deceased persons, he
initially said that he had shot them with a firearm. This, of course, was pure guesswork
and it was not correct. When he was put under further duress, he, by chance, got it right
and said that the deceased persons had been stabbed to death. The police officers
insisted that he could not have committed the crimes on his own and forced him to
identify another person. He identified Mr Mtsweni, who was merely his acquaintance
and neighbour, as his supposed co-perpetrator.
[6] On 30 May 2005, and as a result of the torture and assault, Mr Mahlangu made
a written statement to Captain Justice Mogayane, and confessed in some detail that he
and Mr Mtsweni had committed the crimes. On the same day, the police arrested Mr
Mtsweni without a warrant and detained him along with Mr Mahlangu. Their first court
appearance was the following day, on 31 May 2005, in the Middleburg Magistrates’
Court. They did not have legal representation. When Lieutenant Mthombeni presented
the case docket to the prosecutor it contained all the statements he had obtained,
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including the false confession made by Mr Mahlangu. He did not inform the prosecutor
that the confession was elicited through torture. It appears from the Magistrate’s notes
that, after an explanation of their “bail hearing rights”, Messrs Mahlangu and Mtsweni
indicated that they wished to apply for bail. The prosecutor, however, requested that
the matter be remanded for further investigation and a bail hearing, as the state intended
to oppose bail. Mr Mahlangu testified that he and Mr Mtsweni were not afforded the
opportunity to address the court on the request for a postponement and that they were
only told that the matter was being remanded. There was no evidence led to dispute
this. They remained in custody.
[7] The matter was subsequently remanded on several occasions and Messrs
Mahlangu and Mtsweni remained in custody. It appears that at some stage, an attorney
represented both of them. Mr Mahlangu testified that his understanding was that
Mr Mtsweni had applied for bail but that it was refused. The record does not confirm
or disprove this. He further testified that he and his attorney did not “see eye to eye”
and that, as a result, no application for bail was made on his behalf. He testified that
whilst being held in incarceration, the police tortured them, alleging that they had killed
people and that some of the prisoners assaulted them and accused them of having killed
their relatives.
[8] In the meantime, the police arrested the real perpetrators of the crimes. The
Director of Public Prosecutions decided to prosecute the perpetrators and declined to
prosecute Messrs Mahlangu and Mtsweni. They were accordingly released on
10 February 2006, after being detained for approximately eight months.
The perpetrators were subsequently convicted and sentenced to life imprisonment.
Litigation history
Trial Court
[9] The applicants instituted proceedings in the Gauteng Division of the High Court,
Pretoria claiming non-patrimonial damages and patrimonial damages consisting of loss
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of income. They each claimed R2 700 000 in general damages and R85 000 for loss of
income and earning capacity.2 The general damages were claimed in respect of severe
emotional and psychological trauma, contumelia, and the loss of enjoyment of life.
[10] During the trial,3 Mr Mahlangu testified that he was assaulted by Lieutenant
Mthombeni and other unidentified policemen after the arrest. This, according to Mr
Mahlangu, resulted in him doing a pointing out to Senior Superintendent Mabunda at
16h20 on 29 May 2005 and deposing to a confession before Captain Mogayane the next
morning. In that confession, he admitted that he played a role in the murders and
implicated Mr Mtsweni as co-perpetrator.4
[11] Lieutenant Mthombeni also testified at the trial. He alleged that Mr Mahlangu,
after his arrest, said that “he [knew] about the murder of these people” and that “during
the murder of these people, he was not alone, but was with Mr Mtsweni”. According
to Lieutenant Mthombeni, this information led to the arrest of Mr Mtsweni. The
Lieutenant disputed the allegation of assault. He agreed that during the first court
appearance, the prosecutor was given the entire docket and that the confession was
included. Lieutenant Mthombeni also agreed that he knew that the prosecutor would
rely on the confession to request the continued detention of Messrs Mahlangu and
Mtsweni. He was asked by the court whether it was correct that apart from the
confession, no evidence incriminated Mr Mahlangu. He replied to this question in the
affirmative.
2 In their original particulars of claim , each applicant claimed R585 000 for unlawful and wrongful arrest,
R1 170 000 for unlawful and wrongful detention and R500 000 in respect of the assault. This was amended to
R2 700 000 in the amended particulars of claim.
3 JE Mahlangu v Minister of Police, unreported judgment of the High Court of South Africa, Gauteng Division,
Pretoria, Case No 39321/06 (26 September 2008) (Trial Court judgment).
4 After the case for the applicants was closed, an application for amendment of the particulars of claim was moved.
There was no objection to the proposed amendment, and it was duly allowed by the trial court. The effect of the
amendment was to bring the pleadings in line with the evidence of Mr Mahlangu that the assault and torture caused
him to make the statement incriminating himself and Mr Mtsweni and also to allege that the wrongful arrest was
the cause of their incarceration. The amendments were apparently reflected in amended pages that were handed
up to the trial judg e, but were for some reason not incorporated in to the record. It is , however, common cause
that the particulars of claim were indeed amended.
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[12] The trial court held that Mr Mahlangu’s confession was irregularly obtained
because he was not warned of his constitutional rights and had been tortured. In respect
of Mr Mtsweni, the trial court accepted as common cause that he was arrested on the
basis of the confession made by Mr Mahlangu. It nevertheless held, on the basis of
what it believed was the ratio in Isaacs5 and Sekhoto,6 that the Minister’s liability ceased
once the Magistrate made an order for further detention during the first court
appearance. It awarded damages for the period from the date of arrest until the first
appearance in court. As Mr Mahlangu was arrested on 29 May 2005 and Mr Mtsweni
on 30 May 2005, the court awarded damages of R90 000 to Mr Mahlangu and R50 000
to Mr Mtsweni, and directed the Minister to pay their legal costs on the Magistrate’s
Court scale. No damages were awarded in respect of the claims for the alleged loss of
income and earning capacity.
[13] The trial court granted the applicants leave to appeal to the Full Court of the
Gauteng Division of the High Court, Pretoria (the Full Court). They did not appeal
against the disallowance of their claims for loss of income and earning capacity.
There was no cross-appeal by the Minister against the trial court’s findings that the
arrests of the applicants and their detention had been unlawful, that Mr Mahlangu had
been tortured, or that the confession he made was irregularly obtained. There was also
no cross-appeal against the trial court’s award of damages in respect of the limited
period of detention.
The Full Court
[14] The Full Court approached the matter on the basis that the only remaining dispute
was whether a case was made out for imputing liability to the Minister for the period of
detention after the first court appearance.7 In answering this question, the Full Court
considered whether the unlawfully obtained confession had influenced the decision of
5 Isaacs v Minister van Wet en Orde 1996 (1) SACR 314 (A). The test in Isaacs was clarified by the Supreme Court
of Appeal in Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA).
6 Minister of Safety and Security v Sekhoto [2010] ZASCA 141; 2011 (5) SA 367 (SCA).
7 JE Mahlangu v Minister of Police , unreported judgment of the Gauteng High Co urt, Pretoria, Case No
A621/2015 (31 May 2018) (Full Court judgment) at para 14.
TSHIQI J
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the prosecutor to oppose bail but held that, on the facts, this was not proved. The Court
stated that Isaacs was qualified by the Supreme Court of Appeal in Tyokwana,8 in which
it clarified that Isaacs was not authority for any legal principle that an arrested person’s
continued detention as a result of a court order is automatically lawful.
[15] The Full Court, however, held that there was a “significant gap” in the
applicants’ case seeking to hold the Minister liable for the full period of the judicial
detention.9 It said that the existence of the unlawfully obtained confession could not be
dispositive of the matter. To hold that it was, the Full Court continued, would be to
ignore the important role played by the prosecutor and the Court, both of whom have
constitutional and legal obligations for which they must account when taking decisions
on the further detention of the applicants. It confirmed the trial court’s refusal to award
the applicants damages for the full period of detention and dismissed the appeal with
costs.
The Supreme Court of Appeal
[16] In the Supreme Court of Appeal , the issue was whether the Minister should be
held liable for the full detention period. The Supreme Court of Appeal was split in its
decision on the issue, with Koen AJA writing for the majority . Van der Merwe and
Petse DP wrote separate dissents but reach ed the same conclusion. The majority
judgment acknowledged that, although the lawfulness or otherwise of a court order for
an arrested person’s judicial detention depends primarily on the condu ct of the
prosecutor and/or the Magistrate, the police can incur liability for damages arising from
an unlawful detention of a person. It, however, stated that where the police acted
unlawfully after the unlawful arrest, any harm resulting from the unlawful conduct was
no longer caused by the unlawful arrest, but was caused by th e subsequent unlawful
behaviour, just as unlawful action by the police after a lawful arrest would constitute a
separate delict.
8 Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA).
9 Full Court Judgment above n 7 at para 31.
TSHIQI J
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[17] The Court then accepted that the false confession, on probability, factually
caused the further detention after the first court appearance until the second court
appearance on 14 June 2005. According to the majority, it was on this date, that the
applicants could have applied for and probably would have been granted bail.
Regarding the period beyond 14 June 2005, the Court held that the onus was on the
applicants to prove that the confession remained the decisive consideration that dictated
their continued detention. It concluded that the evidence in that respect was superficial
and that it wa s not clear what had transpired during the subsequent court appearances
beyond 14 June 2005.
[18] The Supreme Court of Appeal reasoned that, had the applicants applied for bail,
the Magistrate hearing the bai l application, just like the Judge in the trial court, would
probably have had no difficulty in concluding that the confession was inadmissible.
It reasoned that neither Mr Mahlangu nor Mr Mtsweni w ere ever prevented from
applying to be released on bail. Furthermore, it found that there was no indication that
a bail hearing w ould not have been held and pursued to finality on 14 June 2005, that
is, after a period of some two weeks’ judicial detention. The Court concluded that the
inclusion of the inadmiss ible confession in the docket was not the legal cause of the
detention beyond 14 June 2005. It also held that the Minister was entitled to invoke the
subsequent court remand orders after 14 June 2005 as a defence to the claim, and refused
to hold the Mini ster liable for the detention beyond the second court appearance on
14 June 2005. In the result, it upheld the appeal in part and awarded compensation to
the applicants for only the period of detention until 14 June 2005.10
[19] The two minority judgments considered the issue to be whether the applicants
pleaded and proved that the unlawful conduct of Lieutenant Mthombeni and his
colleagues was the cause of the entire period of Messrs Mahlangu and Mtsweni’s
post appearance detention. The first minority judgment penned by Van der Merwe J (in
10 Mahlangu v Minister of Police [2020] ZASCA 44; 2020 (2) SACR 136 (SCA) (Supreme Court of Appeal
judgment) at paras 42-3 and 45.
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which Petse DP concurred in a separate dissenting judgment), found that there can be
no doubt that the applicants were remanded in custody because the prosecutor had
opposed bail. The only document contained in the docket which could have supported
a decision to oppose bail was the false confession of the first applicant obtained through
torture.11 This led the minority to the conclusion that the forcible extraction of the
confession was the cause of the entire period of the applicants’ incarceration. It would
have awarded damages for the full period of detention.12
In this Court
Condonation
[20] The applicants seek condonation in terms of rule 32 of the rules of this Court for
their failure to file the application for leave to appeal timeously. The application for
leave to appeal had to be submitted by 13 May 2020 but was only filed on 19 May 2020.
The explanation proffered for the delay is that legal practitioners were operating under
restrictions imp osed during the national lockdown period and that this affected the
proper functioning of their practices. The explanation for the delay is reasonable and
the delay was not long. Condonation is therefore granted.
Jurisdiction
[21] This case concerns issues of fundamental constitutional import. It implicates the
fundamental rights of Messrs Mahlangu and Mtsweni entrenched in sections 12(1)
and 35(1)(c) of the Constitution, including their entitlement to be adequately
compensated in the event that there was an unlawful breach of their constitutional right
to liberty. In Zealand13 and in Lee14 this Court held that, where an applicant seeks to
vindicate his or her rights under sections 12(1) and 35 of the Constitution, this Court
11 Id at para 72.
12 Id at para 75.
13 Zealand v Minister for Justice and Constitutional Development [2008] ZACC 3; 2008 (2) SACR 1 (CC); 2008
(6) BCLR 601 (CC) at para 22.
14 Lee v Minister of Correctional Services [2012] ZACC 30; 2013 (2) SA 144 (CC); 2013 (2) BCLR 129 (CC) at
para 30.
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has jurisdiction. Similarly, in De Klerk, this Court held that the issue of whether the
applicant’s detention was consistent with the principle of legality and whether his right
to freedom and security of the person in section 12(1) of the Constitution has been
infringed is a constitutional matter.15 This Court, therefore, has jurisdiction to entertain
this application.
Leave to appeal
[22] As it has been repeatedly held by this Court that a finding that a matter involves
constitutional issues is not decisive, this Court must still determine whether leave to
appeal should be granted. Leave may be refused if it is not in the interests of justice
that this Court should hear the appeal.16
[23] The finding by the Supreme Court of Appeal that the onus was on the applicants
to prove that, even if bail applications had been made, they would probably not have
been granted, has introduced a new test. This new test is contrary to the one previously
adopted by the Supreme Court of Appeal and by this Court.17 The appeal also turns on
the Supreme Court of Appeal’s conclusion that the applicants’ failure to apply for bail
constituted a new intervening act. This is contrary to the Supreme Court of Appeal’s
own decisions in Woji18 and Tyokwana.19 It is thus in the interests of justice for this
Court to unravel the confusion that has been created by the Supreme Court of Appeal.
An application of the correct test also impacts the merits of the application. The
application thus bears reasonable prospects of success.
15 De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR 1 (CC); 2019 (12) BCLR 1425 (CC) at para 11.
16 Magajane v Chairperson, Nor th West Gambling Board [2006] ZACC 8; 2006 (5) SA 250 (CC); 2006 (10)
BCLR 1133 (CC) at para 29; National Education Health and Allied Workers Union v University of Cape Town
[2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) at para 25 and S v Boesak [2000] ZACC 25;
2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 12.
17 Woji above n 5; Tyokwana above n 8; Zealand above n 13.
18 Woji above n 5.
19 Tyokwana above n 8.
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Issues for determination
[24] It is worth re-stating that the main issue in this application is whether the Minister
should be held vicariously liable for damages flowing from the detention for the entire
period following the arrest up to the time of release. A related issue is whether the
Supreme Court of Appeal was correct in holding that the failure by Messrs Mahlangu
and Mtsweni to apply for bail shifted the onus from the Minister to Messrs Mahlangu
and Mtsweni to prove the lawfulness of their detention from 14 June 2005 to the date
of their release. If this Court finds that the Supreme Court of Appeal was incorrect, the
last issue is the quantum of damages that ought to be awarded.
Unlawful arrest and detention
[25] The prism through which liability for unlawful arrest and detention should be
considered is the constitutional right guaranteed in section 12(1) not to be arbitrarily
deprived of freedom and security of the person. The right not to be deprived of freedom
arbitrarily or without just cause applies to all persons in the Republic. These rights,
together with the right to human dignity,20 are fundamental rights entrenched in the
Bill of Rights. The state is required to respect, protect, promote and fulfil these rights,
as well as all other fundamental rights.21 They are also part of the founding values upon
which the South African constitutional state is built.22
[26] The police, like any other state functionary in the country for that matter, are
constrained by the principle of legality imposed by the Constitution and may not
exercise any power nor perform any function beyond that conferred upon them by law.23
20 Section 10 of the Constitution states that every person has inherent dignity and everyone has the right “to have
their dignity respected and protected”.
21 Section 7(2) of the Constitution. Note too that section 7(1) provides that “[t]his Bill of Rights is a cornerstone
of democracy in South Af rica. It enshrines the rights of all people in our country and affirms the democratic
values of human dignity, equality and freedom”.
22 Section 1(a) of the Constitution states that “[t]he Republic of South Africa is one, sovereign state founded on
the following values” including, “human dignity, the achievement of equality and the advancement of human
rights and freedoms”.
23 Masetlha v President of the Republic of South Africa [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR
1 at para 80; Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6)
TSHIQI J
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That is a basic component of the rule of law and one of the founding values of our
Constitution.
[27] The unlawful deprivation of liberty, with its accompanying infringement of the
right to human dignity, has always been regarded as a particularly grave wrong and a
serious inroad into the freedom and rights of a person.24 In Thandani,25 the Court said
that:
“sight must not be lost of the fact that the liberty of the individual is one of the
fundamental rights of a [person] in a free society which should be jealously guarded at
all times and there is a duty on our Courts to preserve this right against infringement.
Unlawful arrest and detention constitutes a serious inroad into the freedom and the
rights of an individual.”26
[28] This Court has previously pronounced that “the right not to be deprived of
freedom arbitrarily or without just cause affords both substantive and procedural
protection against such deprivations”,27 In Coetzee,28 this Court clarified the two
components of this right in the following manner:
“[There are] two different aspects of freedom: the first is concerned particularly with
the reasons for which the state may deprive someone of freedom [the substantive
component]; and the second is concerned with the manner whereby a person is deprived
of freedom [the procedural component]. . . . [O]ur Constitution recognises that both
aspects are important in a democracy: the state may not deprive its citizens of liberty
BCLR 5 29 (CC) at paras 49, 75 and 77 and Fedsure Life Assurance v Greater Johannesburg Transitional
Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 58.
24 Peterson v Minister of Safety and Security [2009] JOL 24495 (ECG) and Areff v Minister van Polisie 1977 (2)
SA 900 (A) 914 and May v Union Government 1954 (3) SA 120 (N).
25 Thandani v Minister of Law and Order 1991 (1) SA 702 (E).
26 Id at para 707A-B.
27 Zealand above n 13 at para 33.
28 S v Coetzee [1997] ZACC 2; 1997 (3) SA 527 (CC); 1997 (4) BCLR 437 (CC).
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for reasons that are not acceptable, nor, when it deprives citizens of freedom for
acceptable reasons, may it do so in a manner which is procedurally unfair.”29
[29] It is uncontroverted that the initial arrest of Messrs Mahlangu and Mtsweni was
unlawful and amounted to an arbitrary deprivation of freedom substantively and
procedurally. To analyse the correctness of the Supreme Court of Appeal’s refusal to
award compensation for the period beyond 14 June 2005, it is necessary to briefly set
out the principles of delictual liability, following wrongful arrest. It is to this that I now
turn my focus. In Relyant Trading,30 the Supreme Court of Appeal said that “[t]o
succeed in an action based on wrongful arrest the plaintiff must show that the defendant
himself, or someone acting as his agent or employee deprived him of his liberty”.31
[30] In Hurley,32 the Court stated the following:
“An arrest constitutes an interference with the liberty of the individual concerned, and
it therefore seems to be fair and just to require that the person who arrested or caused
the arrest of another person should bear the onus of proving that his action was justified
in law.”33
This statement was referred to with approval in Hofmeyr34 where the Court held that
when “the arrest or imprisonment has been admitted or proved it is for the defendant to
allege and prove the existence of grounds in justification of the infraction”.35
[31] This approach was affirmed in Zealand in which – as in the instant matter – the
focus was on detention. There this Court held that:
29 Id at para 159. See also De Lange v Smuts N.O. [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779
(CC) at para 18.
30 Relyant Trading (Pty) Ltd v Shongwe [2006] ZASCA 162; [2007] 1 All SA 375 (SCA) (Relyant Trading).
31 Id at para 6.
32 Minister of Law and Order v Hurley [1986] ZASCA 53; 1986 (3) SA 568 (A) (Hurley).
33 Id at 589E-F.
34 Minister of Justice v Hofmeyr [1993] ZASCA 40; 1993 (3) SA 131 (AD) (Hofmeyr).
35 Id at 153D-E.
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“It has long been firmly established in our common law that every interference with
physical liberty is prima facie unlawful. Thus, once the claimant establishes that an
interference has occurred, the burden falls upon the person causing that interference to
establish a ground of justification. In Minister van Wet en Orde v Matshoba, the
Supreme Court of Appeal again affirmed that principle, and then went on to consider
exactly what must be averred by an applicant complaining of unlawful detention. In
the absence of any significant South African authority, Grosskopf JA found the law
concerning the rei vindicatio a useful analogy. The simple averment of the plaintiff’s
ownership and the fact that his or her property is held by the defendant was sufficient
in such cases. This led that Court to conclude that, since the common law right to
personal freedom was far more fundamental than ownership, it must be sufficient for a
plaintiff who is in detention simply to plead that he or she is being held by the
defendant. The onus of justifying the detention then rests on the defendant. There can
be no doubt that this reasoning applies with equal, if not greater, force under the
Constitution.”36 (Footnotes omitted.)
[32] It follows that in a claim based on the interference with the constitutional right
not to be deprived of one’s physical liberty, all that the plaintiff has to establish is that
an interference has occurred. Once this has been established, the deprivation is prima
facie unlawful and the defendant bears an onus to prove that there was a justification
for the interference.
[33] In Woji, the Supreme Court of Appeal followed Zealand. It held that the Minister
was liable for post appearance detention where the wrongful and culpable conduct of
the police had materially influenced the decision of the court to remand the person in
question in custody.37 Its reasoning effectively means that it is immaterial whether the
unlawful conduct of the police is exerted directly or through the prosecutor.
[34] In this matter , Lieutenant Mthombeni and his colleagues arrested
Messrs Mahlangu and Mtsweni unlawfully and engineered a false confession through
36 Zealand above n 13 at para 25.
37 Woji above n 5 at para 27.
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assault and torture. They failed to disclose this to the court and it was this conduct on
their part that led to the further detention. Lieutenant Mthombeni’s duty to be candid
and inform the prosecutor that the arrest was unlawful and that the confession was
obtained unlawfully persisted during the full period of the detention of Messrs
Mahlangu and Mtsweni.
[35] Recently in De Klerk,38 this Court handed down four judgments. The majority
view was that the unlawful arrest was the cause of Mr De Klerk’s post appearance
detention and that the Minister was liable for damages in respect thereof. The facts
were briefly that, after his employer had lodged a complaint of assault against him,
Mr De Klerk was requested to report to the Sandton Police Station. Upon his arrival,
he was arrested without a warrant. It was common cause that the arrest was unlawful.
He was then taken to the Randburg Magistrates’ Court, where he appeared
approximately two hours after his arrest. The arresting officer recorded in the docket
that she recommended that Mr De Klerk be released on bail in the amount of R1 000.
However, Mr De Klerk was not afforded the opportunity to apply for bail at this first
appearance.
[36] This matter is distinguishable from De Klerk on the facts. Here,
Lieutenant Mthombeni knew that there was no evidence upon which the applicants
could be successfully and lawfully prosecuted. He was aware that Mr Mahlangu’s
confession was obtained under duress and that it was false. He was also aware that Mr
Mahlangu had been subjected to torture, but decided not to inform the state prosecutor
of the true state of affairs.
[37] The Supreme Court of Appeal’s decision to relieve the Minister from liability
for damages suffered by the applicants after a further remand order was made on
14 June 2005, implies that the obligation on members of the police to make proper and
complete disclosure to the prosecutor of the facts relevant to the further detention of the
38 De Klerk above n 15.
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applicants did not exist on the second court appearance. The obligation on the police
to disclose all relevant facts to the prosecutor is to be regarded as a duty that remains
for as long as the information withheld is relevant to the detention.
[38] In Woji, the Supreme Court of Appeal reminded us that the police, as state
officials, have a public law duty to safeguard the constitutional rights of the members
of society. It said:
“The Constitution imposes a duty on the state and all of its organs not to perform any
act that infringes the entrenched rights, such as the right to life, human dignity and
freedom and security of the person. This is termed a public law duty. On the facts of
this case, Inspector Kuhn, a policeman in the employ of the state, had a public law duty
not to violate Mr Woji’s right to freedom, either by not opposing his application for
bail, or by placing all relevant and readily available facts before the Magistrate. A
breach of this public law duty gives rise to a private law breach of Mr Woji’s right not
to be unlawfully detained, which may be compensated by an award of damages. There
can be no reason to depart from the general law of accountability, that the state is liable
for the failure to perform the duties imposed upon it by the Constitution, unless there
is a compelling reason to deviate from the norm. Mr Woji was entitled to have his right
to freedom protected by the state. In consequence, Inspector Kuhn’s omission to
perform his public duty was wrongful in private law terms.”39
[39] In Tyokwana the Supreme Court of Appeal held:
“the [Minister] has shown that the circumstances in which the appellant’s employees
instigated and persisted with his prosecution, amounted to an unjustifiable breach of
section 12(1)(a) of the Constitution. This is sufficient to establish delictual liability on
the part of the appellant for the full period of the Minister’s detention from
2 October 2007 to 20 July 2009.”40
39 Woji above n 5 at para 28. See also Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at paras 34-8 and 43-4.
40 Tyokwana above n 8 at para 44.
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[40] In Botha41 the Court stated:
“It is also trite law that in a case where the Minister of Safety and Security (as
defendant) is being sued for unlawful arrest and detention and does not deny the arrest
and detention, the onus to justify the lawfulness of the detention rests on the defendant
and the burden of proof shifts to the defendant on the basis of the provisions of
section 12(1) of the Constitution. . . . These provisions, therefore, place an obligation
on police officials who are bestowed with duties to arrest and detain persons charged
with and/or suspected of the commission of criminal offences, to establish before
detaining the person, the justification and lawfulness of such arrest and detention.
This, in my view, includes any further detention for as long as the facts which justify
the detention are within the knowledge of the police official. Such police official has
a legal duty to inform the public prosecutor of the existence of information which
would justify the further detention. Where there are no facts which justify the further
detention of a person, this should be placed by the investigator before the prosecutor of
the case and the law casts an obligation on the police official to do so. In
Mvu v Minister of Safety and Security Willis J held as follows:
‘It seems to me that, if a police officer must apply his or her mind to
the circumstances relating to a person’s detention, this includes
applying his or her mind to the question of whether detention is
necessary at all.’
It goes without saying that the police officer’s duty to apply his or her mind to the
circumstances relating to a person’s detention includes applying his or her mind to the
question whether the detention is necessary at all. This information, which must have
been established by the police officer, will enable the public prosecutor and eventually
the magistrate to have an informed decision whether or not there is any legal
justification for the further detention of the person.”42 (Footnotes omitted.)
[41] And in Tyokwana the Court reasoned:
41 Botha v Minister of Safety and Security, January v Minister of Safety Security 2012 (1) SACR 305 (ECP).
42 Id at paras 29-30.
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“[T]he duty of a policeman, who has arrested a person for the purpose of having him
or her prosecuted, is to give a fair and honest statement of the relevant facts to the
prosecutor, leaving it to the latter to decide whether to prosecute or not.”43
[42] There is no question – as the Supreme Court of Appeal also concluded – that
“the inclusion of the confession in the docket with the intention that it be relied upon ”
(emphasis added ) factually caused Messrs Mahlangu and Mtsweni’s detention up to
their second court appearance.44 A question that arises is whether public policy dictates
that this conduct – accompanied by the silence of the police about it throughout – is too
remote for delictual liability to attach to the police and, vicarious ly, to the Minister
beyond the second court appearance .45 A related question is whether – despite this
concealed criminal conduct – Messrs Mahlangu and Mtsweni bore the onus that the
Supreme Court of Appeal said they did.
[43] It is now trite that public polic y is informed by the Constitution. 46 Our
Constitution values freedom, and understandably so when regard is had to how before
the dawn of democracy freedom for the majority of our people was close to non -
existent. The primacy of “human dignity, the achieve ment of equality and the
advancement of human rights and freedoms” is recognised in the founding values
contained in section 1 of the Constitution. Section 7(1) of the Constitution provides
that the Bill of Rights “enshrines the rights of all people in ou r country and affirms the
democratic values of human dignity, equality and freedom”. These constitutional
provisions and the protection in section 12 of the right of freedom and security of the
person are at the heart of public policy considerations.
43 Tyokwana above n 8 at para 40 . See also Prinsloo v Newman 1975 (1) SA 481 (A) at 492G and 495A. In
Carmichele above n 39 at para 63, it was held that the police have a clear duty to bring to the attention of the
prosecutor any factors known to them relevant to the exercise by the magistrate of his discretion to admit a detainee
to bail.
44 Supreme Court of Appeal judgment above n 10 at para 42.
45 The relevance of public policy is that legal causation turns on the dictates of public policy. In this regard see
De Klerk above n 15 at para 28.
46 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 57. See also
Beadica 231 CC v Trustees for the time being of the Oregon Trust [2020] ZACC 13; 2020 (5) SA 247 (CC); 2020
(9) BCLR 1098 (CC) at para 87.
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[44] If we are to give meaning to freedom as a foundational value of our Constitution
and to the right to freedom and security of the person, we cannot allow the police to
deprive people of their freedom by so simple a stratagem as behaving in the egregious
manner in which they did here and then lying low and keeping quiet to see if anything
will come to the rescue of the victims of their nefarious deeds . If we allow that to
happen, then police – like they did before the advent of our democracy – will continue
to ride rough shod over the freedoms of our people. So, generally in circumstances like
the present public policy dictates that delictual liability must attach, lest we find
ourselves in a situation where freedom as a constitutional value and the right to freedom
and security of the person are devalued.
[45] The unlawful continued concealment by the police of the fact that the confession
was obtained illegally therefore provides the applicants with a basis for holding the
Minister delictually liable for the full detention period. This ordinarily would have been
the end of the enquiry, but it is prudent that this Court determines the second issue that
arises in this appeal: whether the Supreme Court of Appeal was correct in critici sing
Messrs Mahlangu and Mtsweni for their failure to apply for bail . And, whether the
Court was correct in shifting the onus to prove the lawfulness of their post appearance
detention from the Minister to them, such that they had to prove the unlawfulness of
their continued detention.
[46] It is common cause that the Supreme Court of Appeal adopted a novel approach
to determine liability on this basis. This was also not pleaded by the Minister. As stated
above, it is in any event, contrary to the jurisprudence of the Supreme Court of Appeal
and this Court. In Woji, the Supreme Court of Appeal said:
“In the context of s ection 12(1)(a) of the Constitution and the decision by the
Constitutional Court in Zealand, an examination, of the legality of the manner in which
the M agistrate’s discretion to further detain Mr Woji was exercised, cannot be
precluded simply by the existence of the Magistrate’s order. The Constitutional Court
in Zealand did not require the decisions of the respective Magistrates to be set aside,
TSHIQI J
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before the lawfulness of the appellant’s detention could be determined. Once it is clear
that the detention is not justified by acceptable reasons and is without just cause in
terms of section 12(1)(a) of the Constitution, the individual’s right not to be depriv ed
of his or her freedom is established. This would render the individual’s detention
unlawful for the purposes of a delictual claim for damages.”47
It follows that the approach adopted by the Supreme Court of Appeal , in shifting the
onus onto the applicants, constituted an error in law.
[47] Apart from the patent error in law, the approach of the majority judgment is
flawed even on the facts. The majority judgment’s view – that a bail application could
have been finalised within one day and would have resulted in the release of
Messrs Mahlangu and Mtsweni – disregards the fact that the prosecutor had expressed
a clear intention to oppose bail. The basis for opposing bail was the unlawful
confession. The unlawful confession implicated the applicants in a gruesome murder
of several members of a family. That they would have been released on bail was not a
foregone conclusion, having regard to the confession made by Mr Mahlangu.
[48] Furthermore, the majority judgment did not give proper consideration to the fact
that the trial in the High Court ran for six days with the police vehemently denying any
wrongdoing. The majority judgment’s view that the applicants would have had no
problem in convincing a court hearing the bail application that the confession was false
disregards this factor. Thus, the Supreme Court of Appeal misdirected itself in holding
that the applicants’ failure to apply for bail constituted an intervening act breaking the
chain of legal causation.
Conclusion
[49] The Supreme Court of Appeal erred in refusing to award damages for the full
period of detention. The Minister is therefore liable to compensate the applicants for
47 Woji above n 5 at para 27. See also Zealand above n 13 at para.
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the period of their detention from the date of their arrest, being 30 May 2005, to the date
of their release on 10 February 2006. This amounts to eight months and ten days.
Quantum
[50] It is trite that damages are awarded to deter and prevent future infringements of
fundamental rights by organs of state. They are a gesture of goodwill to the aggrieved
and they do not rectify the wrong that took place. In Seymour,48 the
Supreme Court of Appeal encapsulated the purpose of damages and said:
“Money can never be more than a crude solatium for the deprivation of what in truth
can never be restored and there is no empirical measure for the loss.”49
[51] And then in Tyulu,50 the Court re-affirmed it as follows:
“In the assessment of damages for unlawful arrest and detention, it is important to bear
in mind that the primary purpose is not to enrich the aggrieved party but to offer him
or her some much-needed solatium for his or her injured feelings. It is therefore crucial
that serious attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted. However, our courts should be astute to ensure that the awards
they make for such infractions reflect the importance of the right to per sonal liberty
and the seriousness with which any arbitrary deprivation of personal liberty is viewed
in our law. I readily concede that it is impossible to determine an award of damages
for this kind of injuria with any kind of mathematical accuracy. Although it is always
helpful to have regard to awards made in previous cases to serve as a guide, such an
approach if slavishly followed can prove to be treacherous. The correct approach is to
have regard to all the facts of the particular case and to deter mine the quantum of
damages on such facts.”51
48 Minister of Safety and Security v Seymour [2006] ZASCA 71; 2006 (6) SA 320 (SCA).
49 Id at para 20.
50 Minister of Safety and Security v Tyulu [2009] ZASCA 55; 2009 (5) SA 85 (SCA).
51 Id at para 26.
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[52] In Rahim,52 the Supreme Court of Appeal listed the following as factors relevant
when determining the amount of damages to award for the deprivation of liberty: (a) the
circumstances under which the deprivation of liberty took place which would include
the fact that the arrest was not only arbitrary but was preceded by brutality and torture
by the arresting officer; (b) the conduct of the defendants – the arresting officer
continued to attempt to influence the prosecutor after the unlawf ul arrest to ensure the
applicants would remain in detention despite knowing that such arrest was unlawful;
and (c) the nature and duration of the deprivation.53
[53] In Woji, the Supreme Court of Appeal took into account the following: the cells
where Mr Woji had been kept were overcrowded, dirty and there were insufficient beds
to sleep on ; he was subjected to the control of a gang who raped other prisoners; h e
suffered the appalling, humiliating and traumatic indignity of be ing raped on two
occasions which he did not report to the prison authorities because he feared retaliation
from gang members; and the fact that he endured these humiliating and degrading
experiences for 13 months. The Court found that an award in the sum of R500 000 was
appropriate.
[54] In De Klerk this Court took into account the fact that the applicant was detained
from 20 December 2012 to 28 December 2012. It also took into account the fact that
the applicant had provided precedent for the quantum of the general damages he sought
and the fact that the respondent did not put up a serious fight in that respect. It awarded
damages in the amount of R300 000 for the eight days’ deprivation of freedom.
[55] The relevant factors here are that Mr Mahlangu was tortured by several police
officers before he made the confession that led to the deprivation of his liberty. The
investigating officer did not disclose the torture and assault to the prosecutor, nor did
he inform the prosecutor that the confession was engineered by the assault and torture.
52 Rahim v Minister of Home Affairs [2015] ZASCA 92; 2015 (4) SA 433 (SCA).
53 Id at para 27.
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[56] The circumstances under which Mr Mahlangu and Mr Mtsweni were detained
for eight months and 10 days were unpleasant, to say the very least. In addition, they
were placed in solitary confinement for two months to protect them from attack and
taunting by fellow detainees who believed that they had killed their relatives. No
amount of compensation can undo the humiliation and human rights violations suffered
by the applicants. Appropriate solatia, taking into account all of these factors, are the
following: the first applicant should be awarded total compensation in the amount of
R550 000 and the second applicant, total compensation in the amount of R500 000.
There is no reason why the Minister should not be ordered to pay the costs, including
the costs of two counsel.
Order
[57] I make the following order:
1. Leave to appeal is granted.
2. The appeal against the order of the Supreme Court of Appeal is upheld to the
extent reflected below.
3. Paragraph 2(b)(i) and (ii) of the order of the Supreme Court of Appeal is set
aside and substituted with the following order:
“The first defendant is ordered to pay:
(i) An amount of R550 000 to the first plaintiff;
(ii) An amount of R500 000 to the second plaintiff;
(iii) The above amounts are to be paid with interest at the prescribed rate
from date of the judgment of the High Court, being 26 September
2014;
(iv) Costs of suit, including the costs of two counsel.”
4. The respondent must pay the costs of the appeal, including the costs of two
counsel.
For the Applicants:
For the Respondent:
A B Rossouw S C, S J Myburgh and
C H Badenhorst instructed by
Makhafola and Verster Incorporated
R Bedhesi SC an d D Moodliyar
instructed by State Attorney