Unlawful Detention and Delictual Liability

Written by Kristin Meikle and Zunaid Lundell

The issue in dispute in the case of Mahlangu and Another v Minister of Police (CCT 88/20) [2021] ZACC 10; 2021 (7) BCLR 698 (CC) (14 May 2021) was whether the Minister of Police may be held liable for the payment of damages for the full duration of an innocent accused’s unlawful detention following an unlawful arrest.

1. Factual overview
   • After being accosted in the safety of his own home, without warrant or reasonable suspicion, Mr Mahlangu was arrested, tortured and coerced into confessing to murders which he had no knowledge of or involvement in. In succumbing to further violence and duress inflicted on him by members of the South African Police Service (SAPS) to identify a co-perpetrator, Mr Mahlangu falsely incriminated Mr Mtsweni.
   • Mahlangu and Mtsweni were detained in police custody pending their first court appearance the following day. After appearing before the Magistrate, the matter was remanded for further investigation and a bail hearing, and the co-accused were held in jail where they were further victim to violence at the hand of SAPS officials and other prisoners. After approximately 8 months, the prosecution withdrew its case against Mahlangu and Mtsweni in light of incriminating evidence obtained against the real perpetrators of the crime.
   • After their release, Mahlangu and Mtsweni instituted proceedings against the Minister of Police claiming non-patrimonial damages for emotional and psychological trauma, contumelia and the loss of enjoyment of life, together with patrimonial damages for loss of income and/or earning capacity.
2. Trial Court (High Court)
   • At trial, the court held that albeit Mahlangu’s confession was obtained as a result of undue duress, coercion and torture, Mahlangu and Mtsweni’s detention post-first appearance was as per judicial remand – which, in accordance with the ratio in Isaacs v Minister van Wet en Order (1996)[1]and Minister of Safety and Security v Sekhoto (2010)[2], the court held that this severed the Minister of Police’s liability. The damages awarded were therefore only awarded for the one-day imprisonment preceding Maglangu and Mtsweni’s first appearance.
3. Full bench Appeal (High Court)
   • Having been afforded the right to appeal the Court a quo’s decision, and with no cross-appeal by the Minister of Police, Mahlangu and Mtsweni (the Applicants) maintained their case for damages for the full duration of their unlawful detention. The appeal court, however, found that the mere existence of an unlawfully obtained confession was not dispositive of the Applicant’s case nor did it impute the Minister of Police’s liability for further damages. The court thus dismissed the appeal.
4. Supreme Court of Appeal (SCA)
   • The majority judgment in the SCA acknowledged that the Minister of Police may be liable for damages, notwithstanding the fact that lawfulness of court-ordered detention hinges on the conduct of the Prosecutor or Magistrate, on account of the false confession being the probable factual cause for such continued detention pending their second appearance and eventual bail application. In such instance further damages were awarded for the full period.
   • However, the Applicants failed in bringing applications for bail at their second hearing thereby failing to draw the court’s attention to the inadmissibility of Mahlangu’s confession. On this premise, the majority held that the inclusion of the inadmissible confession in the docket was thus not the legal cause of the Applicant’s detention beyond their second appearance.
   • Ultimately, the Court held the Applicant’s failure to apply for bail constituted a Novus Actus Interveniens which severed the legal causal nexus between their continued detention and the false confession which originally resulted in their unlawful detention. The SCA thus found that the Applicants had to refute and disprove this finding.
5. Constitutional Court (CC)
   • The Constitutional Court granted leave to appeal the SCA’s judgment in light of the implicated fundamental rights of the Applicants as entrenched in Section 12(1) and Section 35(1)(c) of the Constitution[3], and similarly the right to human dignity and the right not to be arbitrarily and unlawfully deprived of liberty.[4]
   • The predominant issue for determination in this court was whether the Minister of Police could be held vicariously liable for the Applicant’s detention post-second appearance. Secondary but parallel to this was the issue of shifting the onus of proof of the lawfulness of the detention.
   • The CC, in unearthing and echoing past case law dealing with similar legal issues, highlighted that the onus of justifying detention is born on and rests solely with the Defendant and/or his agent who has deprived persons of their liberty and freedom – irrespective of whether the unlawful conduct is exerted directly or through the prosecutor (as was present in this case). The Plaintiff/Appelant need only prove such deprivation has occurred to establish prima facie
   • Of key consideration was the recent Constitutional Court judgment of De Klerk v Minister of Police[5], where Theron J (for the majority) held that the Magistrate’s remand of De Klerk post-appearance did not render the subsequent harm that arose as too remote from the unlawful arrest. In this consideration, subjective reasonable foresight of the arresting officer that the wrongfulness of his act would cause harm on the arrested person was present.
   • Even if Mahlangu and Mtsweni were afforded the opportunity to make bail applications, the arresting officer was aware that the Prosecutor intended to oppose such application and relied on incriminating confession. The arresting officer therefore wrongfully withheld material information from the Prosecutor and Magistrate, being that the confession was unlawfully obtained by way or duress, through torture. Therefore, the harm caused for the entire detention period, irrespective of bail prospects and judicial remand, was reasonably foreseeable by members of the SAPS under the ambit of the Minister of Police.
6. Conclusion
   • Ultimately, the CC reasoned that in light of public policy, the requirements of procedural and substantive fairness and overarching judicial precedent the SCA erred in their judgment of shifting the onus of proof on the Appellant and consequently misdirected vindicating the human rights violation suffered by the Appellants.
   • The Minister of Police was therefore held vicariously and delictually liable for the unlawful acts and omissions of his employees and Mahlangu and Mtsweni were awarded damages for the entire period of their unlawful detention.

[1]      Isaacs v Minister van Wet en Orde 1996 (1) SACR 314 (A). The test in Isaacs was clarified by the Supreme Court of Appeal in Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA).

[2]      Minister of Safety and Security v Sekhoto [2010] ZASCA 141; 2011 (5) SA 367 (SCA).

[3]      Vide: The Constitution of the Republic of South Africa (1996):

Section 12(1) – The right to freedom and security of a person, which includes the right – (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way; and

Section 35(1)(c) – Everyone who is arrested for allegedly committing an offence has the right not to be compelled to make any confession or admission that could be used in evidence against that person.

[4]      Vide: Thandani v Minister of Law and Order 1991 (1) SA 702 (E); and S v Coetzee [1997] ZACC 2; 1997 (3) SA 527 (CC); 1997 (4) BCLR 437 (CC).

[5]     [2019] ZACC 32.