Diljan v Minister of Police

The appellant, Ms Avril Edith Diljan, was arrested without a warrant on 18 September 2015 by SAPS members Constables Ntombela and Tsile after a complaint by a neighbour alleging malicious damage to property. The officers reasonably suspected that she had committed a Schedule 1 offence under the Criminal Procedure Act 51 of 1977 and arrested and detained her until 21 September 2015. She was never brought before court. The appellant alleged that the arresting officers failed to exercise their discretion whether to arrest, wrongly believing they were obliged to arrest and lacked authority to release her on warning or bail. She sued the Minister of Police for unlawful arrest and detention. Her claim was dismissed by the magistrate’s court and on appeal by the High Court, but she obtained special leave to appeal to the Supreme Court of Appeal.

The appeal was upheld. The orders of the High Court and the magistrate’s court were set aside. The arrest and detention of the appellant were declared unlawful, and she was awarded R120 000 in general damages with interest, together with costs.

The case reinforces and clarifies the principle that even where the jurisdictional facts for a warrantless arrest under s 40(1)(b) are present, police officers must consciously appreciate and exercise their discretion whether to arrest or use less invasive means. A failure to exercise discretion renders the arrest and detention unlawful. The judgment also provides guidance on assessing damages for unlawful arrest and detention and cautions against excessive claims and awards.