The applicant, Bryan James de Klerk, was arrested without a warrant on 20 December 2012 by a police officer on a charge of assault with intent to do grievous bodily harm, following a complaint by his employer. The arrest was later conceded to be unlawful. He was brought before the Randburg Magistrates’ Court the same morning. Although police bail of R1 000 had been recommended in the docket, the applicant was not afforded an opportunity to apply for bail at his first court appearance. The magistrate routinely remanded him in custody without considering bail. He remained detained until 28 December 2012, when the complainant withdrew the charge. De Klerk instituted a delictual claim against the Minister of Police for damages arising from his arrest and detention for the entire period. The High Court dismissed the claim, finding the arrest lawful. The Supreme Court of Appeal held the arrest unlawful but split on whether the Minister was liable for detention after the first court appearance, with the majority limiting liability to the period before court. De Klerk appealed to the Constitutional Court.
Leave to appeal was granted and the appeal was upheld. The Minister of Police was ordered to pay the applicant R300 000 in damages with interest from 30 October 2014 to date of payment, and to pay the costs in the Constitutional Court, the Supreme Court of Appeal, and the High Court, including the costs of two counsel.
This case is a leading authority on legal causation in claims for unlawful arrest and detention in South African law. It clarifies that an unlawful arrest can ground liability for detention continuing after a first court appearance, depending on considerations of legal causation and public policy. The judgment rejects a rigid rule that judicial remand automatically breaks causation and affirms a flexible, constitutionally infused approach to remoteness of damage. It significantly strengthens the protection of the right to freedom and security of the person under section 12 of the Constitution.