Constitutional Court victory – Police ministry must pay R300,000
12 Sep 2019
It brings us great fulfilment to report that we advised and represented wrongfully arrested Bryan De Klerk to victory over the SAPS.
Back in 2012, ‘court-underdog’ Bryan De Klerk was arrested, following a row with his employer at the time. Eight days after the ex-employer’s assault charges, a Constable Ndala contacted De Klerk, who agreed to present himself at the police station.
Unexpectedly – he was arrested without a warrant by a policeman under Ndala’s command and taken to the holding cells. De Klerk then made an appearance in court later that day.
He was not given an opportunity to apply for bail, and De Klerk was instead summarily processed and sent to Johannesburg Prison! Having spent Christmas in prison, he was released on bail only seven days after his arrest.
De Klerk decided to take legal action against the Police Ministry and the case was referred to us by our Mbombela instructing attorneys Pieter Nel.
During the recent legal proceedings, we brought to light that in fact, De Klerk’s case docket (present with him at the Randburg Magistrates court and in the prosecutor’s possession) actually recommended that a bail figure of as little as R1 000 be granted.
We helped unveil that Constable Ndala, the arresting officer, foresaw the potentially personal legal harm arising from De Klerk’s remand and, notwithstanding same still proceeded to remand him into custody under circumstances where she knew that he would not be given bail at his first court appearance, and could have exercised her discretion not to arrest him pending further investigation of the case against him.
We helped unveil that Constable Ndala, the arresting officer, foresaw the potentially personal legal harm arising from De Klerk’s remand. So in spite of that, Ndala still proceeded to remand De Klerk into custody under circumstances where she knew he wouldn’t be given bail at his first court appearance, and could have exercised her discretion not to arrest him pending further investigation of the case against him.
Essentially, the question before the Constitutional Court was whether De Klerk could sue only the police (and not the National Director of Public Prosecutions) for his unlawful detention after his first appearance in court. The status quo before this judgement was that once a person appeared in court, their claim against the minister of police came to an end and any claim arising from detention post court appearance had to be brought against the National Director of Public Prosecutions. What we sought to achieve by the appeal to the Constitutional Court was to extend the liability of the Minister of Police in instances such as the present to include the period of detention after a court appearance in the event that the SAPS proceeded to take a person into custody full well knowing that that person would not be granted bail at their first court appearance.
We achieved just that.
Four judgments were written by the court.
Justice Leona Theron, in the majority judgment found that the crucial fact in the matter was that Ndala subjectively foresaw the harm arising from the remand of De Klerk after his first court appearance.
“She knew that [De Klerk’s] further detention after his court appearance would be the consequence of her unlawful arrest of him. She [Ndala] reconciled herself with this knowledge in proceeding to arrest him,” Theron said.
That’s not to say there wasn’t resistance…
In a dissenting judgment, Justice Johan Froneman found that Ndala had only the constitutional responsibility of bringing De Klerk to court timeously. “Once she had done that, she had no further direct legal competence or authority to charge [De Klerk] or to decide on his release or further detention”.
In a separate dissenting judgment, Chief Justice Mogoeng found that considerations of public policy and justice rendered it unreasonable to attribute liability to the police for a court’s failure to fulfil its exclusive constitutional obligations.
Director in the General Litigation department, Nicolette de Witt is particularly proud of having had the privilege of assisting Pieter Nel Attorneys and client Mr de Klerk with this matter since 2016, when the case initially proceeded to trial in the North Gauteng High court, and Mr de Klerk’s claim was initially dismissed in the court a quo. “ It has been a long, but rewarding journey that eventually saw us achieving this ground breaking judgement, of which we at GMI are immensely proud.”
Director in the General Litigation department, Nicolette de Witt is particularly proud of having had the privilege of assisting Pieter Nel Attorneys and client, Mr de Klerk, with this matter. Since 2016, when the case initially proceeded to trial and Mr de Klerk’s claim was dismissed in the North Gauteng High court, Nicolette subsequently concluded: “ It has been a long, but rewarding journey that eventually saw us achieving this ground breaking judgement, of which we at GMI are immensely proud.”(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)