THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 329/17

In the matter between:

BRYAN JAMES DE KLERK

APPELLANT

and

MINISTER OF POLICE

RESPONDENT

Neutral citation: De Klerk v Minister of Police (329/17) [2018] ZASCA 45
(28 March 2018)

Coram:
Shongwe ADP, Leach and Majiedt JJA and Rogers and Hughes
AJJA

Heard:
8 March 2018

Delivered: 28 March 2018

Summary: Delictual claim – Unlawful arrest and detention – what constitutes
unlawful arrest – whether the Minister of Police is liable for the further
detention after the suspect has been remanded to custody by the court is fact-
based – the purpose of arrest is to bring the arrested person to court.

ORDER
________________________________________________________________

On appeal from:  Gauteng Division, Pretoria (Tokota AJ sitting as court of
first instance):
1 The appeal is upheld with costs.
2 The order of the court a quo is set aside and replaced with the following:
‘(a) The defendant is ordered to pay the plaintiff the sum of R30 000 for general
damages.
(b) The defendant is ordered to pay interest a tempore morae on the sum of
R30 000 from date of summons.
(c) The defendant is ordered to pay the plaintiff’s costs of suit.’

JUDGMENT
________________________________________________________________

Shongwe ADP (Majiedt JA and Hughes AJA concurring)
[1] This appeal concerns a delictual damages claim resulting from an alleged
unlawful arrest and detention. The appellant, Mr Bryan James de Klerk, was
arrested on a charge of assault with intent to do grievous bodily harm on 21
December 2012 and appeared in court on the same day. He was remanded in
custody at Johannesburg prison until he was released on 28 December 2012
after the complainant withdrew the complaint. On 23 October 2014, the
appellant issued summons against the Minister of Police claiming damages for
unlawful arrest and detention and malicious prosecution in the sum of R1
million. The high court dismissed the claim with costs and the subsequent
application for leave to appeal suffered the same fate. The appeal is with leave
of this court.

[2] The facts are largely common cause, save for the lawfulness or otherwise
of the arrest and the quantum of the damages. The appellant testified that the
complainant owed him money for services rendered. He went to the
complainant’s office on 11 December 2012, to demand his money and an
altercation ensued when it became apparent that the appellant was not going to
get his money.  They manhandled each other. In the scuffle, the complainant
grabbed him and he held the complainant back. He pushed the complainant
against the wall causing him to bump into the frame of a wall picture. The glass
broke and cut the complainant’s back. The cuts to the complainant’s back were
sutured and a medical report was issued. He reported the incident to the police
who opened a docket for assault with intent to do grievous bodily harm.
[3] On 20 December 2012 the appellant received a voice message on his
telephone to go to the police station to discuss the complaint against him. On 21
December 2012 he attended at the Sandton police station and met a detective,
Ms Ndala, who explained the allegations against him and asked him if he was
willing to make a statement, but the appellant elected to make a statement in
court. While at the police station, the appellant called his attorney, but was
unable to get hold of him. He was placed under arrest and within an hour or so
he was taken to court. Ms Ndala indicated, in writing that she had no objection
against bail of R1 000. The appellant’s version is that he was never given an
opportunity to make a statement in response to the allegations against him. In
court the appellant was remanded in custody to the Johannesburg prison
(commonly known as Sun City). As indicated earlier, on 28 December 2012, the
complainant withdrew the charges and the appellant was released from prison. I
shall now deal with the findings of the court a quo, the application of the law to
the particular facts of this case and my conclusion.

[4] The particulars of claim clearly delineate the cause of action as an
unlawful arrest and detention without a warrant and malicious prosecution. In
para 7 of the judgment of the court a quo, it characterised the appellant’s case
as: ‘It appears that the primary basis upon which it is alleged that the arrest was
unlawful is because it took place without a warrant’. Counsel for the respondent
conceded that no ratio decidendi is apparent in the judgment. What appears to
be a ratio is what is said in para 24 of the judgment namely that: ‘Furthermore I
find that the members of the police acted reasonably in the circumstances of this
matter and I am unable to criticise them. In my view any criticism against them
would not be justifiable.’
[5] The appellant contended that the court a quo erred in not considering that
there were no objective facts in evidence underpinning any reasonable suspicion
that an offence referred to in Schedule 1 of the Criminal Procedure Act 51 of
1977 (the Act) had been committed. He contended further that the absence of a
warrant made the arrest unlawful because assault with intent to do grievous
bodily harm is not one of the offences referred to in Schedule 1. It was common
cause that at the time of the appellant’s arrest, the police were acting within the
course and scope of their employment with the respondent (the Minister).
Consequently, as their employer, the respondent was vicariously liable for their
wrongful acts. It was also common cause that the respondent bore the onus to
prove the lawfulness of the arrest.
[6] The respondent relied on the provisions of s 40(1)(b) of the Act which
authorizes a peace officer to effect an arrest without a warrant. The respondent
conceded that assault with intent to do grievous bodily harm is not one of the
offences referred in Schedule 1 but argued that the assault in the present
instance a dangerous wound was inflicted.

[7] The court a quo reasoned that the police were entitled to arrest without a
warrant for ‘any offence, except the offence of escaping from lawful custody in
circumstances other than circumstances referred to immediately hereunder, the
punishment whereof may be a period of imprisonment exceeding six months
without the option of a fine’. This approach overlooked the fact that the
respondent did not plead nor canvass this in evidence. The court a quo mero
motu raised it, without asking the parties to address it on the subject. The
appellant argued that it amounted to a hearing by ambush and referred to Molusi
& others v Voges N O & others 2016 (3) SA 370 (CC) para 28 where Nkabinde
J observed that:
‘The purpose of pleadings is to define the issues for the other party and the Court.  And it is
for the Court to adjudicate upon the disputes and those disputes alone. Of course, there are
instances where the court may, of its own accord (mero motu), raise a question of law that
emerges fully from the evidence and is necessary for the decision of the case as long as its
consideration on appeal involves no unfairness to the other party against whom it is directed.
In Slabbert [Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA)] the
Supreme Court of Appeal held:
“A party has a duty to allege in the pleadings the material facts upon which it relies.  It is
impermissible for a plaintiff to plead a particular case and seek to establish a different case at
the trial.  It is equally not permissible for the trial court to have recourse to issues falling
outside the pleadings when deciding a case.”’

[8] The evidence of Ms Ndala under cross-examination was that she was
entitled to arrest the appellant without a warrant because she suspected that he
had committed an offence referred to in Schedule 1 of the Act. The respondent’s
plea also averred that the arrest was effected in terms of s 40(1)(b) of the Act
which reads thus:
‘40 Arrest by peace officer without warrant
A peace officer may without warrant arrest any person –
…

whom he reasonably suspects of having committed an offence referred to in Schedule 1, other
than the offence of escape from lawful custody.’
[9] It is common cause that Schedule 1 does not include assault with intent to
do grievous bodily harm. It lists an offence of ‘assault when a dangerous wound
is inflicted’. Therefore one of the jurisdictional facts is absent. It cannot be said
that Ms Ndala entertained a reasonable suspicion that the listed offence had
been committed. It is trite that the arrestor must be a peace officer, who
entertains a suspicion that the suspect committed an offence referred to in
Schedule 1 and that the suspicion must rest on reasonable grounds (see Duncan
v Minister of Law and Order 1986 SA (2) 805 (AD) at 818 G-J). The learned
Judge in Duncan stated further that ‘If the jurisdictional requirements are
satisfied, the peace officer may invoke the power conferred by the subsection;
ie, he [or she] may arrest the suspect. In other words, he [or she] then has a
discretion as to whether or not to exercise that power (cf Holgate-Mohamed v
Duke [1948] 1 All SA ER 1054 (HL) at 1057). No doubt the discretion must be
properly exercised. But the grounds on which the exercise of such a discretion
can be questioned are narrowly circumscribed.’
[10] In his plea the respondent did not rely on the relevant part of Schedule 1,
quoted above. Nothing was said about whether or not the wound inflicted was
dangerous. There was no evidence by the respondent that an investigation was
carried out to ascertain the nature and extent of the wound. It was pointed out in
R v Jones 1952 (1) SA 327 (E) at 332D-F that the concept ‘a dangerous wound’
is not capable of easy definition. The court held that ‘by a dangerous wound is
meant one which itself is likely to endanger life or the use of a limb or organ’;
(see also: Bobbert v Minister of Law and Order 1990 (1) SACR 404 (C) at
409e-h). The respondent’s lack of entertaining a suspicion resting on reasonable
grounds is further exacerbated by the fact that the medical report (J88) which
was presented before the court a quo was illegible and the original could not be

located, for unexplained reasons. The court a quo impermissibly speculated that
‘[e]ven though the injuries were not legible in [the] J88 presented in court they
must have been legible in the original J88.’
[11] What is clear is that the arresting officer relied on the statement by the
complainant and the J88 only, when she made the decision to arrest. Clearly,
seen objectively, that was insufficient. The arresting officer failed to investigate
further the circumstances of the assault itself, whether the wound was inflicted
intentionally or whether it came about accidentally during the scuffle. The
nature and the seriousness of the wound was never investigated. The arresting
officer wrongly assumed that the assault was committed with intent to do
grievous bodily harm and that the offence is listed in Schedule 1. Arrest without
a warrant in these circumstances was not lawfully permissible. In my view the
respondent failed to establish the jurisdictional facts, in particular that the
appellant committed an offence referred to in Schedule 1. I find that the
appellant succeeded to prove that the discretion was exercised in an improper
manner. (See Minister of Safety and Security v Sekhoto 2011 (1) SACR 315
(SCA) at para 46 and Duncan at 819B-D). I will now deal with the second cause
of action, the unlawful detention. The malicious prosecution claim seems to
have been abandoned as it was not argued before us.
[12]  The appellant claims that he was unlawfully detained for eight days,
hence the claim in the amount of R500 000 for general damages. I am of the
view that the appellant was unlawfully detained for not more than two hours.
The evidence shows that he arrived at the Sandton police station after eight in
the morning and that by ten am he had appeared in court and had been
remanded in custody. I am of the view that what happened in court and
thereafter cannot be placed before the doorstep of the respondent. My view is

fortified by what Harms DP said in Sekhoto at paras 42, 43 and part of para 44.
For completeness sake I prefer to quote the text fully:
‘[42] While it is clearly established that the power to arrest may be exercised only for the
purpose of bringing the suspect to justice the arrest is only one step in that process. Once an
arrest has been effected the peace officer must bring the arrestee before a court as soon as
reasonably possible and at least within 48 hours (depending on court hours). Once that has
been done the authority to detain that is inherent in the power to arrest has been exhausted.
The authority to detain the suspect further is then within the discretion of the court.
[43] The discretion of a court to order the release or further detention of the suspect is
subject to wide-ranging ─ and in some cases stringent ─ statutory directions. Indeed, in some
cases the suspect must be detained pending his trial, in the absence of special circumstances. I
need not elaborate for present purposes save to mention that the Act requires a judicial
evaluation to determine whether it is in the interests of justice to grant bail, that in some
instances a special onus rests on a suspect before bail may be granted and the accused has in
any event a duty to disclose certain facts, including prior convictions, to the court. It is
sufficient to say that if a peace officer were to be permitted to arrest only once he is satisfied
that the suspect might not otherwise attend the trial then that statutory structure would be
entirely frustrated. To suggest that such a constraint upon the power to arrest is to be found in
the statute by inference is untenable.
[44] While the purpose of arrest is to bring the suspect to trial the arrestor has a limited
role in that process. He or she is not called upon to determine whether the suspect ought to
be detained pending a trial. That is the role of the court (or in some cases a senior officer).
The purpose of the arrest is no more than to bring the suspect before the court (or the senior
officer) so as to enable that role to be performed. It seems to me to follow that the enquiry to
be made by the peace officer is not how best to bring the suspect to trial: the enquiry is only
whether the case is one in which that decision ought properly to be made by a court (or the
senior officer). Whether his decision on that question is rational naturally depends upon the
particular facts but it is clear that in cases of serious crime – and those listed in Schedule 1
are serious, not only because the Legislature thought so – a peace officer could seldom be
criticized for arresting a suspect for that purpose. ...’ (Emphasis added.)
[13] The appellant alleged that ‘[t]he members of the SAPS [respondent]
wrongfully failed and/or unreasonably refused to release the plaintiff [appellant]

on bail; [a]s a result of the foregoing the plaintiff’s further detention was
unlawful’. It is incorrect that the police refused to release the appellant on bail,
the arresting officer in fact recommended that the appellant may be released on
bail of R1000, which recommendation was in writing and formed part of the
content of the docket. In her evidence the arresting officer, Ms Ndala, said that
on the first appearance, cases are usually postponed with no bail fixed. In my
view, what the arresting officer thought or believed was irrelevant as it was the
duty of the presiding officer to address the question of further detention or the
fixing of bail. In terms of s 35(1)(e-f) of the Constitution, ‘everyone has the
right at the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released; and to be
released from detention if the interests of justice permit, subject to reasonable
considerations’.
[14] It is well established that the purpose of arrest is to bring the suspect to
court for trial. I agree with what Harms DP said in Sekhoto, that the arresting
peace officer has a limited role in the process that takes place in court. In my
view presiding officers in courts of first appearance must ensure that the rights
in s35(1)(e-f) of the Constitution are not undermined. It is imperative for a
presiding officer to enquire from the prosecution why it is necessary to further
detain a suspect. In that enquiry the reasons for further detention will emerge as
to whether or not it is in the interests of justice to further detain or release the
suspect. This I say, mindful of the provisions of s 12(1) of the Constitution
which deals with freedom and security of the person and the right not to be
deprived of freedom arbitrarily or without just cause. Failure to enquire at the
first appearance of the reasons for further detention is clearly a contravention of
the above constitutional imperatives and therefore the further detention of a
suspect without just cause would be arbitrary and unlawful. In my view the
police cannot be held liable for the further detention, even if the arrest is found

to have been unlawful. What is critical is that, the justice department would be
responsible and liable for the further detention because of its failure to observe
the constitutional rights of a detained person.
[15] In the present instance, the police recommended bail and took the suspect
to court within two hours of his arrest. It is the complainant who set the law in
motion by reporting a case of assault, the police were doing their job by taking
the suspect to court. In my view, the circumstances of this case are
distinguishable from The Minister of Safety and Security v Tyokwana 2015 (1)
SACR 597 (SCA). In Tyokwana the complainant was a policeman who
suspected and accused Tyokwana of stealing his service firearm, while
Tyokwana was busy washing the policeman’s vehicle. In para 39 of Tyokwana,
Fourie AJA said: ‘I believe that the question, whether the orders of the
magistrate remanding the respondent [Tyokwana] in custody and refusing him
bail rendered his subsequent detention lawful or not, has to be answered with
regard to the peculiar facts of this case.’ The learned judge then proceeded to
mention the peculiar facts. He mentioned, amongst others, that the complainant
knew that there was simply no evidence upon which Tyokwana could be
successfully prosecuted and he was aware that the initial statements of the state
witnesses were obtained under duress and that they were false. And further that
Tyokwana had been seriously assaulted at the hands of the police. What is also
striking is that at no stage did this Court in Tyokwana refer to Sekhoto. It only
referred to and distinguished Isaacs v Minister van Wet en Orde 1996 (1) SACR
314 (A) on which the Minister relied. In Isaacs, this Court found that a
detainee’s continued detention, pursuant to an order of court remanded in
custody in terms of s 50(1) of the Act was lawful, notwithstanding the fact that
it had followed upon the detainee’s unlawful arrest. In Isaacs at (323i-j) this
court held that Mthimkhulu and another v Minister of Law and Order 1993 (3)
SA 432 (E) at 438C-F was wrongly decided. Mthimkhulu expressed a view

contrary to mine in this matter. Therefore the decision in Tyokwana is
distinguishable on the facts – it cannot be authority for the proposition that the
further detention of the appellant by the court, in this case, was unlawful
because the arrest was unlawful. I am of the view that the respondent cannot be
held liable for what transpired in court just because the arrest was unlawful. To
do so would be legally untenable and would be contrary to well established
precedent in this court, to which I have referred.  I shall now deal with the
question of quantum.
[16] The respondent can only be held liable for the detention of two hours
until the appellant appeared in court. The amount of damages is limited to the
detention for two hours. The appellant was called telephonically to report at the
police station. When he did, the allegations against him were explained and,
upon being asked if he wished to make a statement, he declined and elected to
make one in court. He spent about two hours or so in the police station, he was
never locked up in a holding cell. He was almost immediately transported to
court, where he was called to appear in a very short time after his arrival. Even
he was surprised that he was called before other suspects whom he found there.
Everything went so fast he himself could not believe it.
[17] It is not as if the appellant was falsely framed with assault charges. It was
the complainant who withdrew the charges and not the state. In my view the
suffering was minimal. The deprivation of liberty and freedom in this case was
highly technical in that the police failed to obtain a warrant of arrest. It has to be
borne in mind that, as was said in Tsose v Minister of Justice 1951 (3) SA 10
(A) at 17H, ‘there is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally effective’. The arrest
and methodology used is fact based. As compensation for the appellant, a sum
of R30 000 would be appropriate in the circumstances.

[18] With regard to costs, although the total quantum awarded is far below the
jurisdiction of the high court, the matter concerned the unlawful deprivation of
the appellant’s liberty and he was justified in approaching the high court. I
therefore would uphold the appeal with costs.
[19] In the result, the following order is made:
1 The appeal is upheld with costs.
2 The order of the court a quo is set aside and replaced with the following:
‘(a) The defendant is ordered to pay the plaintiff the sum of R30 000 for general
damages.
(b) The defendant is ordered to pay interest a tempore morae on the sum of
R30 000 from date of summons.
(c) The defendant is ordered to pay the plaintiff’s costs of suit.’

_______________________

J B Z Shongwe
Acting
Deputy
President
Supreme Court of Appeal

Rogers AJA (Leach JA concurring)
[20] I agree with Shongwe ADP that the appellant’s arrest was unlawful but I
disagree with his assessment of damages. In my view it is not correct, in the
circumstances of this particular case, to disregard the appellant’s detention from
the time of his appearance in court on 21 December 2012 to his release on 28
December 2012.
[21] In regard to the unlawfulness of the arrest, the court a quo’s judgment is
not a model of clarity but it seems to have found the arrest lawful on the basis

(a) that, in terms of s 40(1)(b) of the Criminal Procedure Act read with Schedule
1, a warrantless arrest is permissible inter alia in respect of any offence for
which a punishment exceeding six months’ imprisonment without the option of
a fine may be imposed; and (b) that assault with intent to cause grievous bodily
harm (the offence with which the appellant was charged) was an offence for
which such a punishment could be imposed. Perhaps because this justification
for the arrest was not pleaded or the subject of any argument below, the court a
quo was not alerted to this court’s decision in Areff v Minister van Polisie 1977
(2) SA 900 (A) where it was held (at 913B) that the part of Schedule 1 on which
the court a quo relied applied only to statutory offences.
[22] Accordingly, and on appeal, the respondent’s counsel did not rely on the
court a quo’s reasoning. The respondent’s counsel also conceded, correctly, that
assault with intent to cause grievous bodily harm is not an offence for which a
warrantless arrest is permissible. The respondent’s counsel instead argued that
in terms of Schedule 1 a warrantless arrest is permissible in the case of ‘assault,
when a dangerous wound is inflicted’ and that this was such a case. For several
reasons, the argument cannot succeed:
(a)  First, this justification for the arrest was not pleaded.
(b)  Second, and perhaps because of (a), the question whether the wound
suffered by the complainant was a ‘dangerous wound’, as that term has been
interpreted in case law (a wound endangering life or limb), was not canvassed in
the evidence. Such evidence as there was did not tend to show that the
complainant’s wounds amounted to ‘dangerous wounds’. The J88 form, which
might have shed some light on the subject, was illegible. A new point cannot be
raised on appeal unless the court is satisfied that all the evidence bearing on it
was ventilated.

(c)  Third, the arresting officer, Ms Ndala, did not testify that she held the
suspicion that the appellant had inflicted a ‘dangerous wound’. The suspicion
she held was that the appellant had committed assault with intent to cause
grievous bodily harm. The suspicion justifying a warrantless arrest in terms of
s 40(1)(b) is not an abstract reasonable suspicion but an actual suspicion. If the
arresting officer did not hold the relevant suspicion, it is irrelevant that such a
suspicion – if it had been held – would have been a reasonable one.
(d)  Finally, even if Ms Ndala had suspected the appellant of inflicting a
‘dangerous wound’, the respondent did not discharge the onus of proving that
the suspicion was reasonable.
[23] In regard to the assessment of damages, there are certain parts of the
evidence to which I need to draw attention before examining the legal position.
The appellant voluntarily attended at the police station after receiving a
telephone call from an officer. At the police station he gave them the addresses
where he resided and was employed. There is a factual dispute as to whether he
was invited to give his side of the story. He testified that he was not asked. Ms
Ndala testified that the appellant told her he would give his version in court. Be
that as it may, while he was at the police station the appellant tried to contact a
lawyer but was unable to do so.
[24] Shortly after his arrest he was taken to the Randburg court. He was placed
in a holding cell with others but his case was quickly called. When asked what
happened in court, he said it was very brief. The presiding officer told him he
was going to prison. He asked her to explain and she repeated that he was going
to prison. He was taken down again and transported to prison. Before being
brought again before court, he was released pursuant to the withdrawal of the
charge.

[25] Ms Ndala took the docket to the Randburg court but was not present
when the appellant’s case was called. Included in the docket was her
recommendation that the appellant be granted bail of R1000. She was asked in
cross-examination if she knew whether or not there had been a bail application.
Her reply was: ‘No, there is no bail application done in the first appearance.
After the first appearance the case is postponed for seven days for a bail
application.’ She confirmed that, despite her recommendation for bail, she knew
that he would not receive bail at his first appearance.
[26] In terms of s 50(1)(c) of the Criminal Procedure Act an arrested person
against whom a charge has been brought and who has not been granted bail by
the police must be brought before a lower court as soon as reasonably possible
but not later than 48 hours after the arrest. It was held in Isaacs v Minister van
Wet en Orde 1996 (1) SACR 314 (A) that the ‘arrest’ contemplated in this
provision includes an unlawful arrest. Isaacs was, like the present matter, a case
of damages for unlawful arrest and detention. And like the present matter, an
issue in the assessment of damages was whether regard should be had to the
claimant’s detention after his first appearance in court. The claimant’s counsel
relied on only one ground for his contention that it should, namely that, because
the arrest had been unlawful, the claimant’s remand in custody by the court had
been unlawful. That proposition was, as I have said, rejected.
[27] In Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA)
this court clarified that Isaacs should not be understood as holding that an
arrested person’s detention in custody after his first appearance is automatically
lawful. The unlawful arrest does not preclude a lawful remand in custody but by
the same token not every remand in custody will be lawful (para 38). Having
regard to the particular facts of the case, this court in Tyokwana held that the
appellant’s further detention was unlawful.

[28] Although in Tyokwana the further detention was found to be unlawful,
the court did not consider whether the unlawfulness of the further detention was
a necessary prerequisite for taking into account, when assessing damages for the
unlawful arrest, the period of detention following the first judicial remand of the
case. The point was not raised and the authorities bearing on it were not
discussed. The unlawfulness of the detention following the first judicial remand
would obviously be an essential element of a claim brought against the Minister
of Justice for the wrongful conduct of the prosecutor or the magistrate. It is less
obvious why, in a claim against the Minister of Police for unlawful arrest, the
unlawfulness of the detention following the first judicial remand should be
essential before one can take that period into account in assessing damages.
[29] Subject to the usual rules of delictual liability, a wrongdoer is liable for
all the harmful consequences of his or her wrongful act. As will become
apparent later, the content of the fault requirement may play a role in limiting
liability but for the moment I shall focus on the elements of factual and legal
causation. Factual causation is tested by asking whether the harmful
consequence would have occurred but for the wrongful act. Legal causation (or
remoteness of damage) places a policy-based limit on the factual consequences
for which the wrongdoer is held liable.
[30] The test for legal causation is supple, consistent with its foundation of
public policy. Before this supple test was authoritatively established, there were
conflicting views as to how to test for legal causation, the main competing
views being the direct consequences test and the foreseeability test (P Q R
Boberg The Law Delict 439-448). This court has held that, in applying the
supple test, a court should have regard to these and other tests but should not
apply them dogmatically. In a recent affirmation of the approach, this court said
the following in Merchant Commercial Finance (Pty) Ltd v Katana Foods CC

(1238/2016) [2017] ZASCA 191 (20 December 2017) para 22 (citation of
authority omitted):
‘Turning to the question of legal causation (or remoteness of damage as it is sometimes
called), the issue is one to be determined by considerations of policy. It serves as a measure
of control to ensure that liability is not extended too far. It recognises that liability should not
be imposed where, despite the other elements of delictual liability being present, right-
minded persons, including judicial officers, will regard it as untenable to do so. In
determining whether damage is too remote, tests involving foreseeability, proximity, direct
consequences, all of which are relevant, ‘should not be applied dogmatically, but in a flexible
manner so as to avoid a result which is so unfair or unjust that it is regarded as untenable.’
[31] Even if the claimant satisfies the direct consequences test and the
foreseeability test, there may be cases in which, for policy reasons, liability will
be limited. So, for example, in mCubed International (Pty) Ltd & another v
Singer NO & others [2009] ZASCA 6; 2009 (4) SA 471 (SCA) Brand JA said
the following:
’31.  But our courts have decided against a strict approach to the remoteness issue. Instead, it
adopted what has been described as a 'flexible' or 'supple' test (see eg International Shipping
Co (Pty) Ltd v Bentley (supra) 701A-F; Smit v Abrahams 1994 (4) SA 1 (A) 15E-G). This
was elaborated upon as follows in Fourway Haulage (supra) para 34:
“What Van Heerden JA said in that case [ie S v Mokgethi 1990 (1) SA 32 (A) at 40I-41D]
is not that the 'flexible' or 'supple' test supersedes all other tests such as foreseeability,
proximity or direct consequences, which were suggested and applied in the past, but
merely that none of these tests can be used exclusively and dogmatically as a measure of
limitation in all types of factual situations. Stated somewhat differently: the existing
criteria of foreseeability, directness, et cetera, should not be applied dogmatically, but in a
flexible manner so as to avoid a result which is so unfair or unjust that it is regarded as
untenable.”
32.  Strict application of both the foreseeability test and the direct consequences test for
remoteness in this case would therefore, in my view, lead to a result which is so unfair and
unjust that it will be regarded as untenable. This is therefore a classic example of a situation

where a flexible approach is indicated. And in adopting that approach I find the loss too
remote.’
[32] A moment’s reflection will reveal that there are many cases where the act
of a third party, itself having causal effect, intervenes between the act of the
wrongdoer and the harmful consequence but where the wrongdoer is still held
liable for the harmful consequence. This may be so whether the act of the third
party is lawful or unlawful. For example, the wrongdoer who injures a person so
that the victim requires surgery may be liable if the victim dies during the
course of lawful surgery. Or a driver who negligently creates a dangerous
situation may be liable for harm suffered by a victim even though the immediate
cause of the victim’s harm is a second driver who did not exercise reasonable
care in the dangerous situation. One does not, in these cases, automatically
conclude that the wrongdoer is not liable. Rather, one asks whether, in
accordance with the well established requirements for delictual liability, the
wrongdoer can be held responsible for the harmful consequence.
[33] There is no reason for not following the same approach in determining
the harmful consequences of an unlawful arrest for which the police may be
held liable. There is certainly no justification, in the constitutional era, for
applying a stricter and less generous test. On the contrary, in applying the
conventional tests, in particular those which are policy-based, regard must be
had to the values of the Constitution and to the fact that s 12(1)(a) of the
Constitution guarantees to everyone the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily or without
just cause. In Zealand v Minister of Justice and Constitutional Development
2008 (4) SA 458 (CC), s 12(1)(a) was the foundation for a finding that detention
pursuant to apparently valid court orders was unlawful.

[34] In Woji v Minister of Police 2015 (1) SACR 409 (SCA) this court applied
Zealand in circumstances where a police officer arrested a suspect and testified
at his bail hearing. In consequence of the officer’s evidence, the magistrate
refused bail. In regard to the arrest, this court found that the officer had
reasonable grounds for believing that the suspect had committed armed robbery,
an offence for which a warrantless arrest was permissible. The arrest was thus
lawful. When testifying at the bail hearing, however, the officer said that the
suspect was among four men he had been able to identify on video footage of
the robbery. In fact it was not possible to identify the suspect from the footage
(though the officer, when arresting the suspect, had certain other information,
not mentioned during the bail hearing, which fortified his suspicion).
[35] This court held that the officer had been under a public law duty not to
violate the suspect’s freedom, a duty the officer should have discharged either
by not opposing bail or by placing all the available facts before the magistrate.
He negligently breached this duty (the officer was absolved of malice). Since
the officer’s evidence was the factual cause of the magistrate’s decision, and
since his wrongful conduct was sufficiently closely connected to the subsequent
detention to satisfy the requirement of legal causation, the Minister was held
liable for the 13-month period of detention which followed the refusal of bail,
such period of detention being regarded as unlawful for purposes of a delictual
claim for damages (paras 28-32).
[36] Although the court in Tyokwana and Woji spoke of the further detention
as being unlawful, it seems to me, with respect, that in a delictual claim for
damages one is concerned with the lawfulness or otherwise of the conduct of
the defendant rather than with the so-called lawfulness of the consequences
flowing from such conduct. If a person dents my car by negligently driving into
it, it is his driving, not the dent, which is unlawful. In Woji, for example, the

conduct of the magistrate was, for delictual purposes, lawful, since he made a
decision within his jurisdiction in accordance with evidence placed before him.
The conduct of the investigating officer, however, in negligently giving
evidence which resulted in the suspect losing his liberty, was wrongful. In
relation to the wrongful conduct of the officer, the detention which the suspect
suffered in consequence of the judicial order was a harmful effect caused by,
and not too remote from, the officer’s wrongful conduct.
[37] It thus appears to me that the approach of Van Rensburg J in Thandani v
Minister of Law and Order 1991 (1) SA 702 (E) was correct. There the plaintiff
was arrested by the South African police and detained in South Africa for a few
hours before being handed over to members of the Ciskeian police who took
him into Ciskei (then regarded as an independent country) and detained him for
about two months. It was conceded that the South African arrest was unlawful
but it was argued that the South African police could not be held responsible for
the detention after the plaintiff was handed to the Ciskeian police. The court
rejected this argument. Van Rensburg J correctly directed himself to the
requirements of factual and legal causation, holding that both were satisfied. He
was also right to say that it was irrelevant whether the plaintiff’s detention in the
Ciskei was or was not lawful (706G-H). The point was that his detention in
Ciskei arose out of the unlawful arrest and detention in South Africa (706F-H).
The learned judge cited an unreported judgment by Howie J to similar effect
(705H-706C).
[38] The decision in Thandani was confirmed on appeal in Minister of Law
and Order v Thandani 1991 (4) SA 862 (A). Joubert JA, in a terse judgment,
said that although on the probabilities it seemed that the plaintiff’s detention in
Ciskei was unlawful, it was irrelevant to the plaintiff’s case whether or not this
was so (872A-B).

[39] I return now to the present case. In regard to the appellant’s detention
following the judicial remand, the test of factual causation is plainly established.
But for the unlawful arrest, the appellant would not have been brought before
the court and there would have been no occasion for the court to remand him in
custody. As to legal causation, the direct consequences test is satisfied. It was a
legal requirement, once the appellant was arrested, that he be brought before
court. The court could only make one of two decisions – remand him in custody
or grant him bail. Either of these outcomes would be a direct consequence of the
arrest. As to foreseeability, each of the two possible consequences of the arrest
would be foreseeable to the arresting officer. Indeed, Ms Ndala actually foresaw
what would happen – that the appellant would be remanded in custody until his
next appearance.
[40] Despite compliance with these two tests, there may be reasons of policy
for not holding the police liable for further detention where a court has
judicially considered whether the suspect should be granted bail and has come
to a conclusion that the suspect should not be released. In jurisdictions where
the direct consequences test prevails (or used to prevail), a court might treat an
intervening judicial adjudication as breaking the causal chain between the arrest
and further detention. Harnett v Bond [1924] 2 KB 517 (CA) and [1925] AC
669 (HL) was a remarkable case where a sane man was detained in various
asylums for nine years. The question was whether the doctor who first caused
him to be unlawfully detained could be held liable for the entire period of
detention, even though the man was subjected to various subsequent
assessments by other doctors. The trial judge directed the jury in accordance
with the direct consequences test, advising them that it was open to them to hold
that the failure by intervening doctors to appreciate that the claimant should not
be further detained did not break the causal chain between the first doctor’s
unlawful act and the nine-year detention. This is what the jury held but the

Court of Appeal reversed the decision and the House of Lords confirmed the
Court of Appeal’s judgment. In the Court of Appeal Scrutton LJ expressed
himself as follows (565):
‘There is no doubt that the question whether damages are too remote is one of degree, and
that it is very difficult to say exactly where the line is to be drawn. . .. Again there is no doubt
that the action of a third party does not necessarily break the chain of causation and make
subsequent damage too remote. . . .. But it appears to me that when there comes in the chain
the act of a person who is bound by law to decide a matter judicially and independently, the
consequences of his decision are too remote from the original wrong which gave him a
chance of deciding. It was on this principle that in Lock v Ashton it was decided that a
defendant who had wrongfully taken a person into custody and brought him before a
magistrate was not liable for the subsequent remand by the magistrate, which was a judicial
act. Applying this principle I am clearly of opinion that the liability of either defendant for
damages stops when the damages only continued by the independent act of a person under a
legal duty to form an independent opinion.’
[41] The case cited by Scrutton LJ, Lock v Ashton (1848) 12 QB 871; [1848]
ER 878, is an ancient decision though it was approved in Diamond v Minister &
others [1941] 1 All ER 390. For two reasons, however, one must be cautious
about looking to English cases for guidance on the question which arises in the
present case. First, the English law relating to remoteness of damage is not the
same as ours. Second, in English law unlawful arrest and detention (usually
styled false imprisonment) is a species of the tort known as trespass, which has
peculiar features of its own. These features affect the approach in
Commonwealth jurisdictions whose common law is based on English law.
[42] To label an intervening act as a novus actus interveniens (language
redolent of the direct consequences test of remoteness) is really to apply a value
or policy judgment since it is impossible, by applying any absolute objective
test, to say whether an intervening act ‘breaks the causal chain’ and is thus a
novus actus interveniens. In Harnett the intervening acts did not break the chain

of factual causation. The court, though it did not say so in terms, was applying a
policy-based limitation by regarding the intervening medical assessments as
rendering the resultant detention too remote from the first wrongdoer’s conduct.
In their famous work on causation, Professors Hart and Honoré say that the
distinction in such cases is not between voluntary and non-voluntary intervening
acts but ‘between routine and the independent exercise of a discretion’ (H L
Hart and Tony Honoré Causation in the Law 2 ed at 159).
[43] In South Africa liability for non-patrimonial damages for wrongful arrest
and detention is governed by the actio iniuriarum, which is a general action
relating to infringements of personality rights, of which liberty is one. The
principles of liability are general but for reasons of policy some distinctions are
drawn. For present purposes, the following two should be noticed:
(a)  In the case of wrongful arrest it is not necessary that the arrester should
have been aware of the wrongfulness of his or her action. The intention to arrest
and detain suffices, so in a sense the liability is strict. Even if this position was
initially adopted under the influence of English law, it can be justified on policy
grounds (Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154B-157B).
(b)  Where the claimant is detained pursuant to a valid judicial process at the
instigation of an alleged wrongdoer who does not himself effect the arrest, it is
in keeping with the policy of the law that animus iniuriandi in its full sense
should be proved in order to hold the instigator liable. This means that the
claimant must prove not only that the proceedings were instigated without
reasonable and probable cause but that the defendant knew this to be so.
Although, under the influence of English law, this is sometimes called
malicious arrest (or malicious deprivation of liberty), the concept of ‘malice’
should be understood in accordance with the principles of the actio iniuriarum (J
Neethling, J  M Potgieter and P J Visser Neethling’s Law of Personality 2 ed

124-125). (In the light of the Constitution and this court’s decision in Woji, the
common law position may now have been relaxed so that, at least in some
circumstances, negligence will suffice. This is not a question on which I need
express any opinion. In what follows, my references to the requirement of full
animus iniuriandi must be read subject to this possible relaxation.)
[44] Where there is an unlawful arrest by a police officer followed by a
judicial remand, one may appear to have a combination of (a) and (b). However
in such a case the police officer already commits a wrongful act by arresting and
detaining the suspect. One thus needs to balance the policy considerations
underlying the requirement of full animus iniuriandi in case (b) with the general
principle that the wrongdoer in case (a) should be liable for all those
consequences of his or her wrongful act that are not too remote. In my view,
that balance is appropriately struck by holding that an arresting officer is not
liable for detention ordered by a court pursuant to a deliberative or considered
judicial process unless the arresting officer has the full animus iniuriandi
required for malicious deprivation of liberty. The requisite animus iniuriandi
might be present at the time of the arrest or might come into existence
afterwards. Either way, in such a case one is dealing with two wrongful acts,
namely the wrongful arrest and the malicious deprivation of liberty (ie
instigating the judicial detention). If the requirements for malicious deprivation
of liberty are absent, the policy-based element of remoteness would exclude
liability for harm caused by an intervening deliberative judicial process, even
though further detention might be foreseeable and a direct consequence of the
wrongful arrest.
[45] I have used the expression ‘deliberative judicial process’ because in my
view there are no reasons of policy for disregarding, in the case of wrongful
arrest, those harmful consequences which flow from the arrest mechanically or

as a matter of routine. In Harnett the court appears to have regarded the
intervening decisions of the doctors as considered opinions (right or wrong)
formed pursuant to a statutory duty. Lock v Ashton (1848) 12 QB 871; [1848]
ER 878, the false imprisonment decision mentioned in Harnett, was also such a
case; the magistrate remanded the plaintiff in custody after hearing witnesses.
Only where a judicial officer has applied his or her mind to the question
whether the suspect is entitled to bail does one have an intervening act which
can be said, from the perspective of policy, to neutralise the harmful effect of
the wrongful arrest.
[46] The decision of this court in Minister of Safety and Security v Sekhoto &
another [2010] ZASCA 141; 2011 (5) SA 367 (SCA), from which my colleague
quotes in his judgment, is not in my respectful opinion contrary to the
conclusion I have reached. That case was not concerned with the question
whether the defendant could be held liable for detention following judicial
remand but with whether the arrest itself was unlawful. In discussing the
discretion which a peace officer has once the jurisdictional requirements for a
warrantless arrest have been satisfied, Harms DP said that the purpose of the
arrest is not so much to bring the accused to trial but to allow the court before
whom the suspect must be brought to decide whether the suspect should be
detained pending a trial. The rational exercise of the discretion to arrest thus
requires the officer to assess whether the case is one where the court, rather than
the police, should decide whether the accused should be detained pending his
trial. Harms DP emphasised that the accused’s further detention is ‘within the
discretion of the court’ (para 42) and that the court’s discretion ‘requires a
judicial evaluation to determine whether it is in the interests of justice to grant
bail’ (para 43). In my opinion it is this ‘judicial evaluation’ which, from the
perspective of legal causation, renders subsequent detention too remote to be
taken into account as a consequence of the unlawful arrest.

[47] It is the absence of an intervening evaluative act of this character that is
the distinguishing feature of this case. We must have regard to the facts to
determine whether, as a matter of policy, the liability of the police for this
particular arrest should, in the absence of full animus iniuriandi, terminate with
the particular judicial remand which occurred on 21 December 2012. True, in
terms of s 60(1)(c) of the Criminal Procedure Act it was the duty of the
magistrate, if the question was not raised by the appellant or the prosecutor, to
ascertain from the appellant whether he wished the court to consider his release
on bail. It is clear from the appellant’s evidence that the question of bail was not
raised by the prosecutor or by the magistrate. If the question of bail had been
raised, it seems inconceivable that the appellant would not have been released,
because there was in the docket a recommendation for release.
[48] It is thus apparent that there was no considered decision by the magistrate
as to whether the appellant should be released on bail. On the evidence of the
appellant (and there is no other evidence on the question), the prosecutor and
the magistrate failed to comply with their duties. The appellant was not legally
represented and was overwhelmed by the circumstances. The picture created by
his evidence is of a high-volume remand court in which accused persons were
brought up and down from the cells with great rapidity.
[49] As I have said, the appellant’s detention following the judicial remand
was a direct consequence of the arrest. Was it foreseeable to the arresting
officer? We have the answer from her own mouth. Not only was it foreseeable;
she did in fact foresee it. She knew that the Randburg court would not deal with
the question of bail at the first appearance and that the appellant would be
remanded in custody. In other words, she knew that at the first appearance the
remand would be a routine or mechanical act rather than a considered judicial
decision. She may not have ‘wished’ the appellant to be further detained but in

law she intended that result – a person is presumed to intend the natural
consequences of his or her actions (Warner Lambert SA (Pty) Ltd v
Commissioner for the South African Revenue Service [2003] ZASCA 59; (2003)
65 SATC 347 para 14). It is generally accepted that intended consequences,
however strangely they may come about, can never be too remote to attract
legal liability (Boberg op cit 440 and 450; Thandani supra in the court a quo at
705F-G). This is hardly a case where one can say that to hold the police liable
for the full period of detention would be ‘so unfair or unjust that it is regarded
as untenable’ (mCubed supra para 32). On the contrary it would in my opinion
be unfair and unjust for the police not to be so liable on the facts of this
particular case.
[50] For reasons I have explained, I do not think it is necessary, in a delictual
setting, to say that the detention following the judicial remand was ‘unlawful’
before one can conclude that it is a harmful effect for which the wrongful
arrester can be held responsible. But if such a finding were necessary, I would
be prepared to say that what happened in court on 21 December 2012 was
unlawful and resulted in the appellant being deprived of his freedom arbitrarily
and without just cause. On the appellant’s evidence, what happened was a
shocking violation by the prosecutor, the magistrate and indeed the
investigating officer of their duties to ensure that the question of bail was
properly considered at the appellant’s first appearance. Detention in prison for a
week is no small matter. Had the question of bail been considered by any of the
officials concerned, it would immediately have been apparent that there was no
justification not to grant the appellant bail in a modest amount. This was not a
case where remand in custody pending further investigation could ever have
been warranted.

[51] I thus consider that the appellant’s damages should be assessed with
reference to the full period of his detention. The period of detention was seven
nights, extending into an eighth day. The appellant found the experience very
distressing. At the holding cells in Randburg his cellphone was confiscated and
he never saw it again. After he was remanded in custody, he was handcuffed
and taken to prison in a bus. He found jail a very intimidating experience. He
testified that he cried almost the whole time. His period of incarceration
included Christmas and Boxing Day. This was the period during which his son
was meant to have been with him. He paid R450 as protection money to a
fellow prisoner who could make prison life more bearable.
[52] By agreement various documents relating to quantum were handed up in
the court a quo without the need for oral evidence. Among these documents was
a report by a clinical psychologist. According to the report, the appellant told
the psychologist that he lost eleven kgs while in prison. Upon his release he was
full of bites (presumably from fleas or lice) and did not sleep well for about two
months. Whenever he applied for a job, there was a standard question as to
whether he had ever been arrested, which made finding work difficult. He now
feels completely intimidated by the police. The psychologist’s impression was
that the appellant was under-reporting the severity of persisting sequelae of the
arrest and incarceration. The psychologist considered that the appellant had
become socially withdrawn; was more anxious than before; and appeared to be
suffering from mild depression.
[53] The psychologist recommended at least thirty psychotherapeutic
consultations at a reasonable cost of R1000 per hourly session. An actuarial
report, also handed in by agreement, gave the capitalised present value of this
treatment at R30 248. During the appeal the respondent’s counsel did not argue
that, if we were to have regard to the entire period of detention, the cost of the

future treatment should not be awarded. These patrimonial damages are
recoverable not under the actio iniuriarum but under the aquilian action.
Although the appellant did not prove that Ms Ndala knew she was arresting him
unlawfully, I am satisfied that she was negligent and that the respondent should
be liable for the patrimonial damages
[54] In regard to non-patrimonial damages, the appellant’s counsel referred us
to two judgments emanating from the same division as the court a quo. In each
case the period of detention was nine days (Duma v Minister of Police &
another (41429/2011) [2016] ZAGPPHC 428 (13 June 2016); Mokaedi v
Minister of Police & another (3503/2012) [2016] ZAGPPHC 405 (3 June
2016). Amounts of R300 000 and R250 000 respectively were awarded in 2016.
Since judgment in the court a quo was delivered in 2016, these provide a fair
range for the appellant’s general damages. In Mokaedi Makgoka J, in
moderating his award, took into account that the claimant, a warrant officer in
the police, had been kept in a single cell with adequate bedding and that the
main harm he had suffered was the deprivation of liberty. Although the
appellant’s detention was marginally shorter than in Duma and Mokaedi, the
conditions of his incarceration were distinctly harrowing. I think an amount of
R300 000 would be appropriate.
[55] Since the general damages and medical expenses have been expressed in
the value of money as at the date of court a quo’s judgment, mora interest
should not run from an earlier date. In regard to costs, summons was issued in
October 2014. With effect from 1 June 2014 the monetary jurisdiction of
regional divisions of the magistrates’ courts was increased from R300 000 to
R400 000. The amount I would award falls within the increased jurisdiction of
regional divisions. However, it was not unreasonable for the appellant to bring
proceedings in the high court, given the nature of the claim and the uncertainty

as to the award of general damages. The respondent’s counsel did not argue that
we should award costs on the magistrate’s court scale.
[56] I would thus make the following order:
(a)  The appeal is upheld with costs.
(b)  The order of the court a quo is set aside and replaced with an order in the
following terms:
(i)  The defendant is ordered to pay the plaintiff the amount of R330 248,
together with interest at the prescribed rate from 7 September 2016 to date of
payment.
(ii)  The defendant is further ordered to pay the plaintiff’s costs of suit,
including the qualifying costs of the experts Trevor Reynolds (psychologist)
and Johan Sauer (actuary).

______________________
O L Rogers
Acting Judge of Appeal

Appearances

For the Appellant:
S J Myburgh

Instructed by:

Pieter Nel Attorneys, Pretoria;

Honey & Partners, Bloemfontein

For the first Respondent:
M S Phaswane (with him D D Mosama)

Instructed by:

The State Attorney, Pretoria;

The State Attorney, Bloemfontein
SUPREME COURT OF APPEAL SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
28 March 2018

STATUS
Immediate

Please note that the media summary is for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Bryan James de Klerk v Minister of Police (329/17) [2018] ZASCA 45 (28 March
2018)

Today, the Supreme Court of Appeal (SCA) upheld an appeal brought by the
appellant, Bryan James de Klerk, against a judgment of the Gauteng Division,
Pretoria. The crux of the issue on appeal concerned a delictual damages claim
resulting from an alleged unlawful arrest and detention.  The appellant was arrested
on a charge of assault with intent to do grievous bodily harm (assault GBH) on 21
December 2012 and was taken to the Randburg magistrate court for his first
appearance on the same day of his arrest. At court, his case was postponed and he
was remanded in custody at the Johannesburg prison, bail was not entertained. The
appellant remained in custody for approximately eight days after-which the
complainant withdrew the charges levelled against him. He was subsequently
released on 28 October 2012. The appellant instituted action against the Minister of
Police (the respondent), on 28 October 2014, claiming damages for unlawful arrest
and detention and malicious prosecution in the sum of R1 million.

The facts of this case were largely common cause save for the lawfulness or
otherwise of the arrest and the quantum of damages. In the court a quo the appellant
contended that assault GBH is not one of the offences referred to in schedule 1 of
the Criminal Procedure Act 51 of 1977 (the Act) and as such the police were
required to apply for a warrant of arrest when effecting such an arrest. Therefore, the
arrest was unlawful. The respondent, on the other hand, contended that an arrest
can be made in terms of s 40 (1) (b) of the Act which authorizes a peace officer to
effect an arrest without a warrant.  The court a quo held that the police were entitled
to arrest without a warrant for “any offence, except the offence of escaping from
lawful custody in circumstances other than circumstances referred to hereunder, the
punishment whereof may be a period of imprisonment exceeding six months without
the option of a fine”. It held further that in accordance with s 40 (1) (b), there was a
reasonable suspicion garnered by the police officer that the appellant did in fact
commit a schedule 1 offence. The court a quo further held that the appellants’
detention was not unlawful for the fact that he, upon his arrest, was taken to court to
enable him to apply for bail, which the police did not object to. As a result, the
appellants claim was dismissed with costs.
In this Court, the majority (per Shongwe ADP and Majiedt JA and Hughes AJA
concurring) held that the arresting officer wrongfully assumed that the assault was
committed with intent to do grievous bodily harm and that the offence is listed in
schedule 1. The Court reasoned that schedule 1 lists an offence of assault when a
dangerous wound is inflicted and the respondent, in its plea, did not rely on this
relevant portion of schedule 1. Nothing was said about whether or not the wound
inflicted was dangerous and there was no evidence adduced showing that an
investigation was carried out to ascertain the nature and extent of the wound. It was
further held that the arrest without a warrant, in the circumstances, was not lawfully
permissible.
Dealing with the appellants’ second issue raised, of the unlawful detention, the
majority held that the arresting officer plays a limited role in what transpires after the
first appearance in court. His or her role is only to bring the suspect before court,
which then determines whether the suspect ought to be detained pending the trial.
The Court held that the respondent cannot be held liable for what transpired in court
and for the further detention of the appellant. It further held that the respondent can

only be liable for the detention of two hours until the appellant appeared in court. The
Court did not adjudicate over the malicious prosecution claim as it seemed to have
been abandoned by the appellant.
In the circumstances, the Court upheld the appeal, and as compensation for the
appellant ordered the respondent to pay a sum of R30 000 for general damages.
The minority, per Rogers AJA and Leach JA, would have upheld the appeal and
ordered that the respondent pay the appellant the sum of R330 248, which includes
the further detention after the first appearance in court and, the cost of suit including
qualifying costs of two experts.