South African Constitutional Court clarifies law on liability of police for unlawful detention after court appearance

The Constitutional Court on 14 May 2021 overturned a judgement of the Supreme Court of Appeal, which had limited the Minister of Police's liability for unlawful detention to the point at which they could have applied for bail. The judgement is important for the evolving jurisprudence on liability for lawful detention on the continent.

On 25 May 2005 at Middelburg, a couple and their two young children were killed. Without a warrant and not having a reasonable suspicion, a policeman arrested Mr Mahlangu. The policeman and others assaulted and tortured Mr Mahlangu. As a consequence, Mr Mahlangu caved in and falsely confessed his guilt and falsely implicated an acquaintance, Mr Mtsweni. The prosecutor was not informed that the confession was the result of assault and torture.

At their first appearance Mhlangu and Mtsweni wanted to apply for bail, but the prosecutor applied for a postponement so that further investigations could be conducted. The prosecutor further stated that the State intended to oppose bail. The matter was then postponed, and the applicants were remanded in custody until 14 June 2005. Then followed a total of 13 postponements, the last being on 7 February 2006. By this time three other accused had been arrested and joined in the criminal proceedings. The applicants were finally released by the court on 10 February 2006, after the Director of Public Prosecutions decided to withdraw the charges against them but the other three accused were subsequently prosecuted, convicted and sentenced.

In an action for damages for unlawful detention, the  Gauteng High Court held that the arrest and police detention of the applicants was unlawful but that the Minister could not be held liable in respect of the period after their court appearance because the applicants’ continued detention was as a result of remands by the court. After a failed appeal to the full bench of the High Court, the Supreme Court of Appeal had held that the inclusion by the police of the illegally obtained confession in the docket constituted a factual but not a legal cause of the applicants’ continued detention beyond 14 June 2005, on which date the applicants could have applied for bail, and would have been released. The SCA had increased the amount of compensation to cover the period between 31 May and 14 June 2005.

In a unanimous judgment penned by Tshiqi J, the Constitutional Court held the the further remands by the Magistrate did not relieve the Minister of liability for the full detention period. This is so because the obligation on the police to disclose all relevant facts to the prosecutor remained throughout the period of detention. The arrest of Messrs Mahlangu and Mtsweni was unlawful and amounted to an arbitrary deprivation of freedom substantively and procedurally; all they had to establish was that an interference with their constitutional right not to be deprived of physical liberty had occurred. Once this has been established, the deprivation is prima facie unlawful and the defendant bears an onus to prove that there was a justification for the interference. The wrongful arrest was therefore the basis on which the Minister should be held liable.

The Constitutional Court further held that the SCA misdirected itself in holding that the applicants’ failure to apply for bail, which they said would have been granted, constituted an intervening act breaking the chain of legal causation.The majority view that the applicants would have had no problem in convincing a court hearing the bail application that their confession was false, was belied by the fact that the trial in the High Court ran for six days with the police vehemently denying any wrongdoing.

The Minister was therefore liable to compensate the applicants for the period of their detention from the date of their arrest, being 30 May 2005, to the date of their release on 10 February 2006. The Minister was accordingly ordered to pay an amount of R550 000 to Mr Mahlangu and R500 000 to Mr Mtsweni with costs.

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