Importance of bail flagged in ruling against Minister
The Minister of Police has been ordered by the Constitutional Court to pay R300 000 in damages plus costs in a wrongful arrest case that dates back to 2012, notes News24.
The judgment relates to an application lodged by Brian James de Klerk, who was wrongfully arrested in 2012.
In that year, he was arrested without a warrant on a charge of assault and taken to the Randburg Magistrate's Court. He was put in the holding cells and appeared in court later that day. The case was routinely postponed without the question of bail arising. He was released a week later when the charges were withdrawn.
He then instituted the court action for damages against the Minister in the Gauteng High Court (Pretoria).
De Klerk's case was dismissed and he appealed to the SCA which unanimously agreed that his arrest was unlawful and that he was entitled to damages. However, the court held that the Minister should not be held liable from the time De Klerk was arrested until his first court appearance.
Justice Leona Theron, in the majority judgment in the Constitutional Court, held that the Minister of Justice and the DPP should be held liable along with the Police Minister, 'but it is sufficient for one of them be sued for their proven delict for the applicant to succeed'.
Theron also highlighted the importance of bail consideration.
'The duty of the magistrates to apply their minds to the question of bail is of the utmost constitutional significance. Failure to discharge this duty must result in consequences for the presiding officer involved,' she added.
Theron said she saw no reason not to award De Klerk the damages he sought.
Chief Justice Mogoeng Mogoeng, however, in concurring with the minority judgment, found that to hold the Police Ministry liable for the judiciary's failures 'is to ignore that this section creates an intervening act or mechanism'.
'Furthermore, any public consideration that disregards our constitutional values of accountability, supremacy of the Constitution and the rule of law as well as separation of power, is constitutionally unsustainable.
In the circumstances, it is unreasonable to impute the judiciary's liability to the Minister, he said.
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