Bianca Groves this week failed in her Constitutional Court application to appeal her deceased husband's ‘unlawful and malicious detention’.

Cape Times report says the deceased man, Robert Groves – wrongfully identified as his alleged drug dealing brother – was arrested in 2016 during an undercover operation.

His widow, wrapping up his estate, became the applicant in the matter as Robert died while the case was pending in the Constitutional Court. 

Bianca appealed against her late husband's detention and wrongful arrest and argued that his detention was ‘unlawful and malicious’.

The judgment read: ‘The Regional Court found (the warrant officer's) execution of the arrest reasonable in light of the fact that the warrant was applied for, that there had been a briefing session, and that this was followed by the operation involving many officers with the purpose of bringing the suspects before a court.’

Constitutional Court Justice Sulet Potterill added: ‘Based on the evidence before it, the Regional Court concluded that the applicant had failed to prove that there was no reasonable and probable cause to proceed with the arrest or that there was malice. In support of this finding, the Regional Court held that a diligent investigation was carried out prior to the warrant being issued and the arrest being effected. It held further that there was direct evidence implicating the applicant and that the arrest was not an isolated one which required the exercise of caution because it formed a part of a series of related arrests.’

According to the Cape Times report, Potterill said the notions that the law is to be uniformly enforced in all places and at all times, and that all persons ought to be treated equally before the law, are central to the design of the Constitution.

‘At the same time, law enforcement is, by its very nature, an exercise of discretion which is not a departure from the equality guarantee, but a part of it. We know that it is not always possible to carve out instructions for police officers that are suitable for every set of circumstances; discretion is thus the cornerstone of most of the decisions made by members of the police service. The exercise of police discretion is a regular feature of actions before the High Courts of SA in actions for unlawful arrest and detention.’

Potterill made no order for costs and said ‘the deviation from the loser pays rule is so as not to discourage litigants from instituting claims against the state’.

Full Cape Times report