Case CCT95/18 
[2019] ZACC 32

 Date of Hearing:  21 May 2018
Judgement Date: 22 August 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday 22 August 2019 at 10h00, the Constitutional Court handed down judgment in Mr De Klerk’s application for leave to appeal against a decision of the Supreme Court of Appeal.  The majority of the Constitutional Court held that the Minister of Police (Minister) was liable to compensate Mr De Klerk for the entire period of his detention, following his unlawful arrest, including the period following his first appearance in court.

Around 11 December 2012, a complaint of assault was lodged with the South African Police Service against Mr De Klerk.  On 20 December 2012, Mr De Klerk reported to the Sandton police station, after receiving a voice message from a Detective Constable requesting him to do so.  He was arrested without a warrant on a charge of assault with intent to do grievous bodily harm.  He was then transported to the Randburg Magistrate’s Court, placed in holding cells, and appeared in Court later that same morning.  Without the question of bail arising or being addressed, the matter was routinely postponed by the Magistrate and Mr De Klerk was remanded in custody.  He was released from custody on 28 December 2012, after the complaint was withdrawn.

Mr De Klerk issued summons against the Minister in the High Court of South Africa, Gauteng Division, Pretoria (High Court) for damages flowing from his arrest and detention.  The High Court dismissed the claim on the basis that the arrest and subsequent detention were lawful.  On appeal, the Supreme Court of Appeal unanimously agreed that Mr De Klerk’s arrest was unlawful and that he was entitled to damages in compensation for it.  However, the majority of the Supreme Court of Appeal held that the Minister could not be held liable for Mr De Klerk’s detention after his first court appearance.  The majority further held that the Minister should only be held liable for damages for the time of Mr De Klerk’s arrest until his first court appearance.

In a majority judgment penned by Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurring), the Constitutional Court held that on the facts of this case, the Magistrate’s unlawful remand decision did not render the harm that arose from Mr De Klerk’s subsequent unlawful detention too remote from the unlawful arrest.  The majority judgment reasoned that the liability of the police for the detention after the court appearance should not be determined solely on the basis of whether the further detention was lawful, although that is a relevant consideration.  Instead, liability should be determined in accordance with the flexible principles of legal causation, including constitutionally infused considerations of public policy.  The majority judgment found that on the facts of this case, there were stronger policy reasons for finding for Mr De Klerk especially in light of the actual, subjective foresight of the arresting officer, that Mr De Klerk would not be considered for bail at all at his first court appearance, and accordingly that he would suffer the harm that he did.  The arresting officer foresaw that Mr De Klerk would be routinely detained after his first court appearance.  It would therefore be within the bounds of reasonableness, fairness and justice to impute liability to the Minister for the entire period of Mr De Klerk’s detention in the circumstances of this matter.  The majority ordered the Minister to pay Mr De Klerk an amount of R300 000 with interest at the prescribed rate from 30 October 2014 to the date of payment.

In a separate judgment, concurring in Theron J’s judgment, Cameron J agrees with Theron J that the appeal must succeed on the particular facts of Mr De Klerk’s case.  Cameron J found that the question is whether an unlawful arrest may make the police liable for post-court detention where, to the knowledge of a police officer, a malfunctioning or dysfunctioning remand system may give rise to unlawful detention.  Mr De Klerk’s claim in his pleadings was that the police were responsible for the entire period of his detention, because they neglected to offer him bail, as they were empowered to do so.  Furthermore the evidence showed that the arresting officer knew that without her intervention, in the particular court to which Mr De Klerk was to be taken, his case would be automatically postponed for at least 7 days, during which time he would be imprisoned.  Hence, the police officer who unlawfully arrested Mr De Klerk (and the defendant Minister) is as much responsible for the wrong done by his further detention as if, she were being sued for personal injury inflicted by a negligently driven motor car, she had culpably caused him to fall into its path.

In a dissenting judgment, Froneman J (with Goliath AJ and Mhlantla J concurring) framed the appropriate normative enquiry as being whether the arresting officer’s conduct in relation to the harm – namely, Mr De Klerk’s further detention after his first court appearance – was wrongful.  Given that the arresting officer did not have any direct legal competence or authority to charge Mr De Klerk, or decide on his release or further detention, it would not be equitable or in good conscience to hold her liable for such harm.  Moreover, holding the arresting officer liable on the basis of the mere foreseeability of further unlawful detention would undermine the distinction between unlawful and malicious deprivation of liberty.  Froneman J would accordingly have dismissed the appeal.

In a separate concurring judgment to the judgment of Froneman J, Mogoeng CJ found that to hold the Minister liable for damages occasioned by the Judiciary’s failure to fulfil its section 35 Constitutional obligations, is to ignore that this section creates an intervening act or mechanism.  Furthermore, any public policy consideration that disregards our constitutional values of accountability, supremacy of the Constitution and the rule of law as well as separation of powers, is constitutionally unsustainable.  In the circumstances, it is unreasonable to impute the Judiciary’s liability to the Minister.    

The Full judgment  here