n Tydskrif vir die Suid-Afrikaanse Reg - Where ignorance is bliss tis folly to arrest, or is it? : regspraak




(CA114/2012) 2013 ZAECGHC 53 (5 June 2013)

case nr A 3017/2014 (unreported)

The hallmark of our constitutional democratic order is the high premium it places on the personal liberty of a person. This is evidenced in section 12(1)(a) of the constitution which entrenches every person's right to freedom and security, which includes the right not to be deprived of freedom arbitrarily or without just cause, and section 35(2)(d) which affords a detained person a right to challenge the lawfulness of his or her detention before a court of law. The protection of the right to personal liberty is, however, not something new in our law as personal liberty "has always been jealously guarded by our courts and our law has always regarded the deprivation of personal liberty as a serious injury" ( 1990 2 SA 855 (E) 860F-G); Nkosi "Wrongful deprivation of liberty - it is not just about the warrant" 2015 15). Because our law has always frowned upon unlawful deprivation of liberty our constitution, in constitutionally entrenching this right, has done no more than to ensure that the excesses and the encroachments of the past that often arbitrarily infringed on the right to liberty do not recur ( 2006 6 SA 320 (SCA) par 14).


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