Diljan v Minister of Police

On 18 September 2015, Constables Ntombela and Tsile received a complaint from Ms Goliath that the appellant, Avril Edith Diljan, had damaged her carport by throwing stones and rubbish from her first floor window. The officers inspected the damaged carport and formed the view that malicious damage to property (a Schedule 1 offence) had been committed. They arrested the appellant on Friday, 18 September 2015, between 15h30 and 16h00 under the pretext of discussing the complaint. The appellant was detained in holding cells at Eldorado Police Station under appalling conditions (filthy cells, no hot water, dirty blankets, blocked toilet, no toilet paper, inadequate food). She was not allowed visitors and could not receive her heart medication. She was released on Monday, 21 September 2015 without appearing in court. Both arresting officers testified they believed they had no power to release her on warning or bail, and that only the detective branch had such powers.

• Whether the arresting officers properly exercised the discretion vested in them under section 40(1)(b) of the Criminal Procedure Act 51 of 1977
• Whether the arrest and detention were lawful despite the presence of jurisdictional facts for arrest without warrant
• Whether the officers' failure to appreciate that they had a discretion to warn or release rather than arrest rendered the arrest and detention unlawful
• What quantum of damages is appropriate for unlawful arrest and detention

The appeal was upheld with costs. The high court order was set aside. The trial court order was replaced with: (1) a declaration that the arrest and detention were unlawful; (2) an award of R120,000 general damages with interest at the legal rate from 12 February 2020 to final payment; and (3) an order that the defendant pay costs of suit. Costs were limited to one counsel as employment of two counsel (including senior counsel) was not warranted given the straightforward nature of the matter.

Once the jurisdictional facts for arrest under section 40(1)(b) of the Criminal Procedure Act 51 of 1977 are established, a peace officer has a discretion whether or not to arrest. The officer is not obliged to effect an arrest merely because the jurisdictional requirements are met. Where arresting officers are unaware that they possess such a discretion and believe they are obliged to arrest, they cannot be said to have exercised the discretion required by law. Such failure to exercise discretion, even where jurisdictional facts exist, renders the arrest and subsequent detention unlawful. A peace officer must consciously consider whether to arrest, warn, or summon a suspect to secure their attendance in court.

The Court made several important obiter observations: (1) It criticized the increasingly exorbitant amounts claimed and sometimes awarded in unlawful arrest and detention cases, cautioning legal practitioners against 'thumb-sucking' excessive amounts in particulars of claim without regard to facts and established principles. (2) It emphasized that previous awards serve only as a guide and should not dominate the inquiry or fetter the court's discretion; each case must be assessed on its own facts. (3) The Court noted that the primary purpose of damages in such cases is to provide solatium for injured feelings, not to enrich the aggrieved party, and emphasized that the State should not be treated as a 'cash-cow' with infinite resources. (4) The Court commented on the overstated award in the Khedama case, indicating it could not serve as an appropriate guide. (5) The Court noted that the issue of whether an arrestee must appear in court within 48 hours has no bearing on the exercise of discretion whether to arrest and detain, and criticized the magistrate's reliance on this irrelevant consideration.

This case is significant in South African law for clarifying the critical distinction between the existence of jurisdictional facts for arrest without warrant and the proper exercise of discretion. It reinforces that under section 40(1)(b) of the CPA, even where jurisdictional facts for arrest exist, peace officers are not obliged to arrest but must consciously exercise a discretion whether to arrest, warn, or summon. The failure to appreciate and exercise this discretion renders an arrest and detention unlawful. The judgment emphasizes that ignorance of the existence of a discretion equals failure to exercise it. The case also provides guidance on assessment of damages for unlawful arrest and detention, cautioning against excessive awards and emphasizing that compensation should provide solatium without enriching the plaintiff, and should be fair to both parties. It discourages the practice of claiming unsubstantiated and excessive amounts in particulars of claim.