oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : onregmatige arrestasie en daaropvolgende gevangehouding: die kousaliteitskwessie - De Klerk v Minister of Police [2018] 2 All SA 597 (HHA); 2018 2 SACR 28 (HHA) - regte

Volume 16 Number 1
  • ISSN : 1995-5928



Unlawful arrest and subsequent detention: the issue of causation 

The central question in De Klerk was whether the police who unlawfully arrested the plaintiff can also be liable for his further detention. In this regard a distinction should be made between unlawful arrest and unlawful detention as two independent iniuriae. As a rule arrest is the task of the police and to be lawful it must satisfy certain requirements. For present purposes the most important is to bring the arrestee before a court as soon as reasonably possible, but at least within 48 hours. The onus is then on the court, taking into account constitutional principles, to decide whether the arrestee should be released (on bail) or whether he should be detained pending trial. If this discretion is not properly exercised by the court, the further detention would be unlawful.

In De Klerk the court held that the unlawful arrest and the subsequent unlawful detention should be clearly distinguished. The police are liable only for the arrest and the two hours‘ detention before the plaintiff was brought before the court. For the further detention of seven days in the Johannesburg prison, the justice department (magistrate and prosecutor) would be responsible and liable because of the court‘s failure to exercise its discretion properly by not observing the constitutional principles involved. According to this approach two independent iniuriae have therefore been committed against the plaintiff, and he may claim satisfaction for each based on the infringement of his bodily freedom. Fault on the part of the state is not a requirement for liability.

On the other hand there is the approach of the minority judgment in De Klerk that if, on the basis of general delictual principles, there is a (factual and legal) causal connection between the unlawful arrest and the subsequent (unlawful) detention, the police can also be held liable for the latter. While the question as to factual causation is generally unproblematic since the further detention did flow from the arrest, the question as to legal causation is a policy matter where a flexible yardstick is applied. Here it should be established whether there was a close enough relationship between the arrest and the further detention that the latter can be imputed to the police in view of policy considerations based on reasonableness, fairness and justice. Existing criteria for legal causation such as direct consequences and reasonable foreseeability may play an important role in the application of the flexible approach, but they are not necessarily decisive. As a result the fact that a court may, after a deliberative or considered judicial process, decide that the arrestee should be detained pending trial, can break the legal causal connection even though the further detention was reasonably forseeable and a direct consequence of the arrest. The further detention is not considered to be a novus actus interveniens if it was reasonably foreseeable. In the absence of a deliberative process in De Klerk, the minority found that the police should also be liable for the further detention of the plaintiff.

The conclusion is therefore that in circumstances such as in casu, de lege lata a plaintiff should claim on the basis of two independent iniuriae (unlawful arrest and unlawful detention) in order to recover satisfaction for the full length of his or her detention. This means that the plaintiff in De Klerk will have to institute a second claim on the basis of unlawful detention for the further detention. However, de lege ferenda a plaintiff should be able to recover on the basis of unlawful arrest only full satisfaction also for the further detention merely through application of the general principles of the law of delict, especially those relating to legal causation. It is submitted that the latter approach would probably constitute a simpler way of attaining the desired result.

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