Minister of Police v Mboweni

Mr Wisani Mahlati was arrested and detained by police at Ritavi police station. While in custody he was assaulted by fellow detainees, an assault that police failed to detect or prevent. He was released the following day in a visibly distressed condition, hospitalised later that day, and died five days afterwards. His two minor daughters, represented by their respective mothers, sued the Minister of Police. They obtained agreed delictual damages for loss of support. In addition, they pursued a claim for constitutional damages, alleging that their right to parental care under section 28(1)(b) of the Constitution had been infringed by the unlawful conduct of the police leading to their father’s death. The High Court, proceeding on a purported special case under Rule 33, upheld the children’s entitlement to claim constitutional damages and referred the quantum to trial. The Minister appealed.

The appeal was upheld. The High Court’s order was set aside and the matter was referred back to the High Court for trial, to be conducted in accordance with the principles set out in the SCA judgment. Each party was ordered to bear its own costs of appeal.

The case is significant for clarifying the strict requirements for a special case under Rule 33 and for cautioning against abstract or premature determinations of constitutional liability. It provides important guidance on the interpretation of section 28(1)(b) of the Constitution, emphasising that parental care is a fact-specific enquiry and not automatically infringed by the death of a parent. The judgment also reinforces restraint in awarding constitutional damages where common-law remedies may provide adequate relief.