Cops may cough up for their unlawful arrests

2012-07-07 21:06

Minister of police usually vicariously liable for unlawful acts

The Supreme Court of Appeal (SCA) will decide next month whether individual police officers should be forced to cough up for the legal costs caused by their unlawful arrests.

The case is being taken to the SCA after the North Gauteng High Court ruled in late 2010 that the individual officers involved in an unlawful arrest would be liable for the resulting legal costs caused by an unlawful arrest.

The minister of police is usually held vicariously liable for unlawful actions of the police resulting in damages claims.

In a harshly worded judgment, acting Judge Roelof du Plessis said it did not appear that large damages claims against the minister of police “constitute a deterrent of any nature whatsoever in respect of unlawful behaviour on the part of the security forces”.

He said further: “In fact, the only party being prejudiced as a result of damages claims based on unlawful arrest and detention is the taxpayer.”

The judge said it was important that law enforcement officials “who act with impunity and who think they can do as they please, simply because they have the force of the whole law-enforcing system behind them, should be brought to book and restrained”.

“The whole wrath of the legal system, the rule of law, the courts and the public should be brought upon such officials.”

The ruling followed an urgent application by Pretoria resident Jack Coetzee’s lawyers to Du Plessis on a Sunday night.

Coetzee had been arrested by metro police officer Frans Sivayi for allegedly reckless and negligent driving, failing to comply with an instruction from a traffic officer, crimen injuria and driving an unlicensed motor vehicle.

Du Plessis found that the police’s refusal to grant Coetzee police bail meant he was being unlawfully detained at the Pretoria West Police Station and ordered his immediate release.

Roelof said a person would normally be fined for the offences involved, or, if arrested, the police would be entitled to grant bail.
The police claimed that Coetzee did not ask for bail but Du Plessis found that this was “far-fetched”.

Riaan Meyer, Coetzee’s attorney, said the costs already exceeded R100 000, but that the SCA appeal would put the bill well above R200 000.

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