n South African Law Journal - Wrongful deprivation of liberty - it is not just about the warrant : : notes

Volume 132, Issue 1
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



In 2011 (5) SA 367 (SCA) para 13, the Supreme Court of Appeal noted that there was a growing judicial, academic and public disquiet about the apparent abuse of the power to arrest by some police officers. The court remarked that it appeared as if police officers arrested persons 'merely because they have the "right" to do so but where under the circumstances an arrest is neither objectively nor subjectively justifiable'. This was echoed in 2011 (2) SA 227 (GNP) para 46, where the court went on to note that even the vast number of damages claims instituted against the Minister of Safety and Security for wrongful arrest did not constitute a deterrent of any kind on the part of the police. These observations by the courts capture accurately the current state of affairs, where there appears to be a decline in police discipline and restraint. It is trite law that any interference with the liberty of a person is considered prima facie wrongful. This was the position long before the advent of the 1996 Constitution and the Bill of Rights, which guarantees several rights, including certain non-derogable fundamental rights to freedom and security of the person.

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