Police minister must pay R300 000 plus costs in wrongful arrest case - ConCourt

2019-08-22 13:47


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The Constitutional Court has ordered the Minister of Police to pay R300 000 in damages plus costs in a wrongful arrest case that dates back to 2012.

Nathi Mthethwa was the Minister of Police at the time of the wrongful arrest incident, however, the court order is the responsibility of the ministry.

The judgment relates to an application lodged by Brian James de Klerk, who was wrongfully arrested in 2012.

READ | Wrongful arrests cost SAPS

In that year, he was arrested without warrant on a charge of assault and taken to the Randburg Magistrate's Court.

He was put in the holding cells and appeared in court later that day.

Routinely postponed

The case was routinely postponed without the question of bail arising.

He was released a week later when the charges were withdrawn. He then instituted the court action for damages against the minister in the Gauteng High Court in Pretoria.

De Klerk's case was dismissed and he appealed to the Supreme Court of Appeal which unanimously agreed that his arrest was unlawful and that he was entitled to damages.

However, the court held that the police minister should not be held liable from the time De Klerk was arrested until his first court appearance.

Justice Leona Theron, in the majority judgment, held that the Minister of Justice and the Director of Public Prosecutions should be held liable along with the police minister "but it is sufficient for one of them be sued for their proven delict for the applicant to succeed".

Theron also implicated the arresting officer, who, she said, foresaw the harm arising from the mechanical remand of the applicant after his first court appearance.

"She knew that the applicant’s further detention after his court appearance would be the consequence of her unlawful arrest."

Theron also highlighted the importance of bail consideration.

"The duty of the magistrates to apply their minds to the question of bail is of the utmost constitutional significance.

"Failure to discharge this duty must result in consequences for the presiding officer involved," she added.

Theron said she saw no reason not to award De Klerk the damages he sought.

Chief Justice Mogoeng Mogoeng, however, in a concurring judgment to the minority judgment, found that to hold the police ministry liable for the judiciary's failures "is to ignore that this section creates an intervening act or mechanism.

"Furthermore, any public consideration that disregards our constitutional values of accountability, supremacy of the Constitution and the rule of law as well as separation of power, is constitutionally unsustainable. In the circumstances, it is unreasonable to impute the Judiciary’s liability to the minister," he said.

*This article has been updated after erroneously reporting that Fikile Mbalula was minister of police at the time of the incident. 

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Read more on:    police  |  fikile mabula  |  mogoeng ­mogoeng  |  courts

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