Lizelle Schreuder N O v Minister of Police and Others

Sunnyboy Nene, a 17-year-old minor with severe intellectual disability, was arrested on 12 February 2013 by members of the South African Police Service (SAPS) in Montana on suspicion of attempted theft of a handbag. The SAPS officers processed him as an adult, recording him under different incorrect names and ages (27 and 18 years), despite his obvious inability to provide coherent personal information, sign his name (he could only append a rudimentary mark or thumbprint), or understand his rights, which were read to him in English rather than his home language. He was charged and appeared in court on 14 February 2013, where the presiding magistrate immediately noted he did not appear to be of sound mind and ordered a district surgeon's assessment. The district surgeon's report dated 18 February 2013 found him unfit to stand trial, severely intellectually disabled, disoriented and unable to understand the charges or instruct counsel. Nevertheless, prosecutors continued with the prosecution and he was remanded in custody at Newlock Prison, an adult facility, where he was held in a normal cell and severely neglected. During his detention he deteriorated markedly, exhibiting psychosis, faecal incontinence, bed-wetting and incoherence, and was accosted in his cell, with medical records noting injuries consistent with sexual assault. His aunt, who had reported him missing prior to his arrest, located him at Weskoppies Hospital on 28 April 2013. She produced his birth certificate on 3 May 2013 and he was released into her care. The curator ad litem, Lizelle Schreuder, instituted a delictual claim for unlawful arrest and detention against the Ministers of Police and Justice and Correctional Services, the National Director of Public Prosecutions (NDPP), and Detective Thabethe. The high court dismissed the claim with punitive costs against the plaintiff. Leave to appeal was granted on petition to the Supreme Court of Appeal.

• Whether the arrest of a minor, processed as an adult due to the arresting officers' ignorance of his age and mental disability, was unlawful for purposes of a delictual claim.
• Whether Mr Nene's detention under successive court remand orders was lawful, having regard to the Child Justice Act 75 of 2008 and the right to freedom and security of the person under s 12(1)(a) of the Constitution.
• Whether the Minister of Police, the Minister of Justice and Correctional Services, and the NDPP are jointly and severally liable for damages flowing from the unlawful arrest and detention.
• Whether the Department of Correctional Services can avoid delictual liability for the conditions and fact of detention solely on the basis that it acted pursuant to court remand orders.
• Whether punitive costs on an attorney and client scale are warranted against the state parties given their conduct.

The appeal was upheld with costs on an attorney and client scale, including the costs of two counsel. The high court order was set aside and replaced by an order that: (1) the first defendant (Minister of Police) is liable to compensate the plaintiff for all proven damages suffered by Sunnyboy Nene as a result of his unlawful arrest on 12 February 2013 and his subsequent detention up and until 3 May 2013; (2) the first, second and third defendants (Minister of Police, Minister of Justice and Correctional Services, and National Director of Public Prosecutions) are liable, jointly and severally, to compensate the plaintiff for all proven damages suffered by Sunnyboy Nene as a result of his unlawful detention from 14 February 2013 to 3 May 2013; and (3) the first, second and third defendants, jointly and severally, the one paying the other to be absolved, must pay the costs of the action to date, insofar as it relates to liability, on a scale as between attorney and client, including the costs attendant on the appointment of two counsel on Scale C and Scale B respectively.

(1) In a delictual claim for unlawful arrest, liability may be imposed despite the arresting officer's lack of knowledge that the arrest was wrongful; ignorance of the suspect's minority status does not cure the prima facie unlawfulness of an arrest where the procedural and substantive safeguards of the Child Justice Act 75 of 2008 were not complied with. (2) The right to freedom and security of the person under s 12(1)(a) of the Constitution protects against both procedural and substantive arbitrary deprivation of liberty; every encroachment must be substantively justified by acceptable reasons, and the mere fact that magistrates issued remand orders does not establish that detention was not arbitrary or without just cause. (3) Where officials of different state departments (SAPS, the NPA and the DCS) each contribute to a continuous infringement of a vulnerable minor's constitutional rights in a manner that does not permit separate apportionment of harm, the executive heads may be held jointly and severally liable for damages. (4) The Department of Correctional Services cannot escape liability for the conditions and fact of detention solely by relying on court remand orders, particularly where it failed to take reasonable steps to protect a mentally disabled minor from harm in an adult facility.

The court observed that Detective Thabethe's conduct in failing to investigate Mr Nene's address and generally abandoning his responsibilities deserved censure, but that it would not be just to hold him personally liable in addition to the vicarious liability of his employer because the entire criminal justice system had failed Mr Nene. The court also remarked that the prosecutors displayed a shocking disregard for the presumption of innocence, which was particularly egregious in the case of a vulnerable minor. The high court's punitive costs order against the plaintiff was described as inexplicable and devoid of any explanation in its original judgment. Additionally, the court noted that while the question of whether Mr Nene was raped was stood over for determination in the second part of the trial, the medical report of injuries consistent with sexual assault contributed to the overall picture of the DCS's failure to protect him.

This judgment is significant because it affirms that statutory protections for minors under the Child Justice Act are integral to the constitutional lawfulness of arrest and detention under s 12(1)(a) of the Constitution, and that ignorance of a suspect's minority status is no defence in a delictual claim for unlawful arrest. It reinforces the principle, established in Zealand v Minister of Justice and Constitutional Development, that court remand orders alone cannot substantively justify detention that is otherwise arbitrary and without just cause. It establishes that systemic failures across the criminal justice system—involving the police, prosecution and correctional services—can result in joint and several liability of the respective Ministers and the NDPP for constitutional violations. The judgment also underscores the heightened duty of prosecutors to act objectively, uphold the presumption of innocence and safeguard vulnerable accused persons. Finally, it serves as a strong censure against the state's collective failure to protect a profoundly disabled child in its custody, justifying a punitive costs order against the state.