Abstract
Before the judgement in De Klerk v Minister of Police 2020 1 SACR 1 (CC), (de Klerk), a plaintiff could claim damages for unlawful arrest and detention after the first appearance in court if the arresting (or the investigating) officer had conducted himself unlawfully in addition to the unlawful arrest. The conduct of the arresting (or investigating) officer had to be such that it influenced the prosecution and/or the court to deny the plaintiff bail. In De Klerk the majority of the Constitutional Court (CC), after assuming that factual causation had been proven, held the Minister of Police (Minister) liable for the unlawful arrest and detention of the plaintiff (including detention after the plaintiff had appeared in court). This was despite the CC’s having found that the conduct of the arresting officer after the appearance of the plaintiff in court had been lawful. The CC held that the arresting officer foresaw that by not releasing the plaintiff, the plaintiff would be remanded in detention – the unlawful conduct. The arresting officer was aware that the practice in the court where the plaintiff appeared was to remand all first appearance cases without considering the accused for release on bail. This note contends that the CC's decision does not bear scrutiny. The flaw in the CC's decision arose from its assumption that factual causation had been proven in this case. This faulty approach flowed from the CC's unconventional application of the "but-for" test. Instead of substituting the defendant's actual conduct for the hypothetical reasonable conduct, the CC held that it was the defendant's conduct per se that had caused the plaintiff harm. On this application of the "but-for" test, an arresting officer is unlikely to escape liability for an unlawful arrest and detention even if his or her conduct ceases to be unlawful at one stage or another. The Minister was held liable for the blameworthy conduct of the arresting officer up to the time of the plaintiff's appearance in court. The arresting officer played no role whatsoever after the appearance of the plaintiff in court. It is therefore absurd to hold that her conduct was the factual cause of the damage the plaintiff suffered. Ordinarily the Minister would not be held liable for detention after the court appearance. There was nothing extraordinary in the De Klerk case warranting the Minister’s being held delictually liable for the post-court-appearance detention. The plaintiff failed to prove that it was the conduct of the arresting officer that caused the plaintiff damage post the court appearance.
Highlights
Until now, the South African jurisprudence on unlawful arrest and detention has seemed pretty much settled.1 The courts have demarcated the delictual liability of state institutions according to each institution's breach of its constitutional and statutory responsibilities.2 In what appears to have been the general rule, the police could not be held liable for damages for unlawful detention beyond the plaintiff's first appearance in court, except in specific circumstances.3 From the time of the first court appearance, the responsibility for dealing with the plaintiff lies with the prosecuting authority and the courts.4 Once the arrestee has appeared in court, the police no longer have any authority over him or her
In Lee v Minister of Correctional Services23, the Constitutional Court (CC) delineated the test for factual causation as follows: different theories have developed on causation, the one frequently employed by courts in determining factual causation, is the conditio sine qua non theory or but-for test
The aim of the critique was to illustrate that the CC erred in concluding that factual causation had been established on the facts of this case
Summary
The South African jurisprudence on unlawful arrest and detention has seemed pretty much settled. The courts have demarcated the delictual liability of state institutions according to each institution's breach of its constitutional and statutory responsibilities. In what appears to have been the general rule, the police could not be held liable for damages for unlawful detention beyond the plaintiff's first appearance in court, except in specific circumstances. From the time of the first court appearance, the responsibility for dealing with the plaintiff lies with the prosecuting authority and the courts. Once the arrestee has appeared in court, the police no longer have any authority over him or her. Court",8 with devastating repercussions on legal certainty – a facet of the rule of law This blurring of the lines of liability has the potential to disproportionately expose the Minister of Police (the Minister) to possible unlawful detention claims for the conduct of personnel over whom that office has no authority. The majority opinion ignored the existing precedent that the Minister may be held liable for further detention only if the arresting officer, in addition to the unlawful arrest, engaged in further unlawful conduct Against this backdrop, this contribution contends that on the facts of this case, the plaintiff had failed to surmount the factual causation element. Scrutinises the approach of the majority to the Supreme Court of Appeal (SCA) precedent and ends with concluding remarks
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