Throwing the unlawful detention jurisprudence into turmoil: A Critique of De Klerk V Minister of Police 2020 1 SACR 1 (CC)

Abstract

Before the judgement in De Klerk v Minister of Police 2020 1 SACR 1 (CC), (de Klerk), a plaintiff could claim damages for unlawful arrest and detention after the first appearance in court if the arresting (or the investigating) officer had conducted himself unlawfully in addition to the unlawful arrest. The conduct of the arresting (or investigating) officer had to be such that it influenced the prosecution and/or the court to deny the plaintiff bail. In De Klerk the majority of the Constitutional Court (CC), after assuming that factual causation had been proven, held the Minister of Police (Minister) liable for the unlawful arrest and detention of the plaintiff (including detention after the plaintiff had appeared in court). This was despite the CC’s having found that the conduct of the arresting officer after the appearance of the plaintiff in court had been lawful. The CC held that the arresting officer foresaw that by not releasing the plaintiff, the plaintiff would be remanded in detention – the unlawful conduct. The arresting officer was aware that the practice in the court where the plaintiff appeared was to remand all first appearance cases without considering the accused for release on bail. This note contends that the CC's decision does not bear scrutiny. The flaw in the CC's decision arose from its assumption that factual causation had been proven in this case. This faulty approach flowed from the CC's unconventional application of the "but-for" test. Instead of substituting the defendant's actual conduct for the hypothetical reasonable conduct, the CC held that it was the defendant's conduct per se that had caused the plaintiff harm. On this application of the "but-for" test, an arresting officer is unlikely to escape liability for an unlawful arrest and detention even if his or her conduct ceases to be unlawful at one stage or another. The Minister was held liable for the blameworthy conduct of the arresting officer up to the time of the plaintiff's appearance in court. The arresting officer played no role whatsoever after the appearance of the plaintiff in court. It is therefore absurd to hold that her conduct was the factual cause of the damage the plaintiff suffered. Ordinarily the Minister would not be held liable for detention after the court appearance. There was nothing extraordinary in the De Klerk case warranting the Minister’s being held delictually liable for the post-court-appearance detention. The plaintiff failed to prove that it was the conduct of the arresting officer that caused the plaintiff damage post the court appearance.