Police must pay R300,000 for man's unlawful arrest and week in detention

The constitutional court has ordered the minister of police to pay R300,000 to a man who was unlawfully arrested and detained for a week.
The constitutional court has ordered the minister of police to pay R300,000 to a man who was unlawfully arrested and detained for a week.
Image: Alaister Russell/The Sunday Times

The minister of police must pay R300,000 to a man wrongfully arrested and who spent a week in detention before being released in 2012.

The majority judgment was handed down by the constitutional court on Thursday.

Bryan James de Klerk was unlawfully detained by police for two hours before appearing in court, and a magistrate ordered that he be remanded in custody. De Klerk was released seven days later when charges against him were dropped. 

De Klerk sought to hold the police liable for his detention, before and after his court appearance.

The question before the Constitutional Court was whether De Klerk could sue only the police and not the minister of justice and constitutional development for his unlawful detention.

Four judgments were written by the court.

Justice Leona Theron, in the majority judgment, said De Klerk could.

But chief justice Mogoeng Mogoeng and justice Johan Froneman, in separate judgments, said he could not.

Justice Edwin Cameron agreed with Theron’s judgment.

The case has its genesis in a fight De Klerk had with his employer at the time, Rael Lasarow, on December 12 2012.

In his complaint to the police, Lasarow alleged that De Klerk had pushed him into a glass picture frame hanging on a wall. The glass broke and injured Lasarow.

Eight days later, a Const Ndala contacted De Klerk, who agreed to present himself at the police station.

De Klerk presented himself on December 21 and was unexpectedly arrested.  The officer arrested De Klerk without a warrant.

Following his arrest, a colleague of Ndala took De Klerk, still under arrest, to the Randburg magistrate's court. There, his case docket was handed to the prosecutor. Inside the docket was recorded a recommendation that he be granted bail of R1,000. However, there was no bail hearing.

De Klerk was instead summarily processed and sent to Johannesburg Prison, from which he was released seven days later after Lasarow withdrew the complaint and the charges were dropped.

In her judgment, Theron said the crucial fact in the matter was that Ndala subjectively foresaw the harm arising from the remand of De Klerk after his first court appearance.

“She knew that [De Klerk’s] further detention after his court appearance would be the consequence of her unlawful arrest of him. She reconciled herself with this knowledge in proceeding to arrest him,” Theron said.

In a dissenting judgment, Froneman said Ndala had only the constitutional responsibility of bringing De Klerk to court timeously.

“She did so. Once she had done that, she had no further direct legal competence or authority to charge [De Klerk] or to decide on his release or further detention,” Froneman said.

In a separate dissenting judgment, Mogoeng said considerations of public policy and justice rendered it unreasonable to attribute liability to the police for a court’s failure to fulfill its exclusive constitutional obligations.

“The minister of police should not be made to bear the constitutional burden of the judiciary, simply because Mr De Klerk failed to sue the latter for the period of detention beyond the two hours for which the police are exclusively responsible,” Mogoeng said.


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