On 14 June 2007 an armed robbery took place. Video footage of the robbery led to the arrest of four individuals including the appellant Mr. X.
Mr. X was arrested by Inspector K, a member of the SAPS on 20 November 2007. The following day Mr. X appeared before the relevant Magistrates Court. The case was adjourned to 6 & 11 December 2007 to enable the appellant to obtain legal representation and to apply for bail. On 11 & 12 December 2007 the accused applied for bail but it was denied by the State after considering the seriousness of the offence (schedule 6 offence). The accused could not prove that, on a balance of probabilities, exceptional circumstances existed which, in the interests of justice, permitted his release.
The only evidence linking the appellant to the bank robbery was the video footage. The inspector was the only individual who had viewed the video footage; the inspector gave clarity in identifying the accused as one of the bank robbers. The magistrates court relied upon the inspectors evidence and refused bail for the accused, the magistrate found that there was a prima facie case against the robber and that there were no exceptional circumstances to justify his release.
Mr. X was detained until 13 January 2009 where after he was arraigned in the Regional Court on the charge of armed robbery. The charge against Mr. X was withdrawn after the prosecutor viewed the video footage and decided that Mr. X could not be identified as one of the bank robbers.
As a result Mr. X instituted a claim against the respondent (the Minister of Safety and Security) in the Eastern Cape High Court. Mr. X alleged that his prosecution, arrest and detention were unlawful and malicious. The acting Judge dismissed Mr. X’s action in the court a quo. Mr. X applied for leave to appeal and was partially successful; leave was granted by the court a quo to the full bench of the Eastern Cape Division for purposes of appealing the dismissal of his claim for unlawful arrest and unlawful detention but only for the one day being the period from 20 November 2007 – 21 November 2007. The court subsequently granted leave to Mr. X to appeal against the dismissal of all the claims advanced.
Mr. X had to allege and prove that the Inspector:
- Set the law in motion (instituted or instigated the proceedings)
- Acted without reasonable and probable cause
- Acted with malice (animo injuriandi) and
- The prosecution failed
It came clear in the end that the investigating officer negligently misrepresented the strength of the State’s case against the appellant at the bail hearing, thus bail was subsequently refused. This led to the subsequent detention of the appellant in breach of his right to freedom in terms of s 12 (1)(a) of the Constitution, unlawful and without just cause. The investigating officer breached his public law duty not to violate the appellants’ right to freedom. The appellants’ private law right to know be unlawfully detained was also breached. The magistrates order did not render the appellants’ detention lawful. Thus the respondent was liable to compensate the appellant.
The following order was made:
- The appeal is upheld with costs such costs to include the costs of two counsels.
- The order of the court a quo is set aside and replaced with the following order:
- Judgment is granted in favour of the plaintiff for payment of the sum of R500 000 as against the defendant in respect of plaintiff’s unlawful detention for the period 12 December 2007 – to 13 January 2009.
- The defendant is ordered to pay interest on the sum of R500 000 at the rate of of 15.5 per cent per anum a tempore from date of demand to date of payment.
- The defendant is ordered to pay the plaintiff’s costs of suit together with interest thereon at the rate of 9 per cent per annum a tempore morae from 14 days after taxation of the plaintiff’s costs to date of payment.’
