Appearance before the presiding officer does not serve as a Novus Actus Interveniens after an unlawful arrest and detention.

In De Klerk v Minister of Police [2019] ZACC 32 the Court had to grapple with whether the Minister of Police was liable to compensate De Klerk for the further detention after his first court appearance that was brought about by the unlawful arrest.

On 20 December 2012, De Klerk was arrested after receiving a voice call from Constable Ndala that he had to come down to the Sandton Police Station as a case of assault with intention to cause grievous bodily harm (GBH) had been lodged against him. De Klerk proceeded to the Police Station and he was then arrested for assault GBH without any warrant of arrest. He was then taken to the Ransburg Magistrate Court for his first court appearance. Thereafter De Klerk’s matter was postponed without the issue of bail being addressed and remained in custody until the 28 December 2012 when the matter was withdrawn by the complainant.

De Klerk felt aggrieved by the arrest and further unwarranted detention by the Magistrate and the unlawful arrest by the Constable, he then instituted a claim against the Minister of Police for the entire period of his detention.

The matter was brought before the High Court. However, the High Court held that Constable Ndala was acting on the suspicion that De Klerk had committed a schedule one offense and his arrest and detention was necessary to secure his attendance at court. Therefore, the arrest and subsequent detention were lawful.

The matter was appealed to the Supreme Court of Appeal. The Supreme Court of Appeal unanimously agreed that the arrest was indeed unlawful. However, the Court held that the Minister of Police cannot be held liable for De Klerk’s detention after his first court appearance.

The SCA heavily relied on an analysis of the Supreme Court of Appeal’s judgment in Minister of Safety and Security v Sekhoto 2011 1SACR 315 (SCA) to find that once an accused is brought to trial, it is the presiding officer’s responsibility to ensure that the accused’s fair trial rights under section 35(1)(e)-(f) are not undermined.

The SCA was adamant that the Minister of Police cannot be held to bear the shortcomings of the judiciary.

The majority SCA judgment held that the respondent was liable to compensate the applicant for his unlawful detention only up and until his appearance in Court (for a period of approximately two hours) and awarded him R30 000.

The matter approached the Constitutional Court as the SCA judgement had Constitutional implication such as right to a fair trial and right to liberty.

The Constitutional Court held 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.

This case has brought huge shift concerning extending liability of the Minister of Police and bringing the element of foresight of the arresting peace officer into consideration. The mere fact the Peace officer has fulfilled their duty by bring in the accused before the court for their first appearance does not necessary exonerate the Minister of Police of liability, but the subjective foresight of the arresting peace officer can serve as causal link in imputing liability.

The Minister of Police was held to be the factual and legal cause of the further detention of De Klerk.

The full case can be read on: http://www.saflii.org/za/cases/ZACC/2019/32.html