The Minister of Police is vicariously liable for the entire detention period up to the time of release of persons based on a false confession obtained through torture after their arrest
June 28, 2021
E Mahlangu and Another v Minister of Police  ZACC 10
Constitutional Court of South Africa
Jafta, Khampepe, Madlanga, Mhlantla, Theron, Tshiqi JJ and Mathopo, Victor AJJ
May 14, 2021
Reported by Faith Wanjiku
Tort Law – vicarious liability – master- servant relationship – where a person gave a false confession and falsely implicated another following assault and torture by policemen – where continued detention of persons was based on a false confession after their arrest – whether the Minister of Police would be held vicariously liable for the entire detention period of persons up to the time of release based on a false confession obtained through tortureafter their arrest.
Constitutional Law –Bill of Rights –freedom and security of the person – where persons were assaulted and tortured into giving a false confession and then arrested – whether the assault and torture of the applicants by police officers and subsequent false confession leading to their arrest violated their right to freedom and security of the person under section 12 (1) of the Constitution – Constitution of the Republic of South Africa, 1996, section 12(1)
Criminal Practice and Procedure – arrests – action based on wrongful arrest –justification for interference – duty to prove justification – who bore the onus to prove that there was a justification for the interference with physical liberty of a person in an action based on wrongful arrest.
Common Law – damages – award of damages in an action for deprivation of liberty – factors to consider – what factors were relevant when determining the amount of damages to award for the deprivation of liberty.
The case was about a couple and their two young children who were killed on May 25, 2005 at Middelburg. Without a warrant and not having a reasonable suspicion, a policeman arrested Mr Mahlangu, (the 1st applicant), on May 29, 2005. The policeman and others assaulted and tortured the 1st applicant. As a consequence, he caved in and falsely confessed his guilt. When the police pointed out that he could not possibly have committed the crimes all by himself, he falsely implicated an acquaintance of his, Mr Mtsweni who was arrested the following day, May 30, 2005. As Mr Mtsweni had since passed away, the executrix of his estate, Ms Mailela, was substituted and was the 2nd applicant before the court.
The prosecutor who received the police docket which contained the false confession was not informed that the confession was the result of assault and torture. The applicants indicated that they wanted to apply for bail, but the prosecutor applied for a postponement so that further investigations could be conducted. The prosecutor further stated that the State intended to oppose the applicants’ bail applications. The matter was then postponed, and the applicants were remanded in custody until June 14, 2005. In addition to this first postponement, there was a total of 13 postponements, the last being on February 7, 2006. By that time three other accused had been arrested and joined in the criminal proceedings. The applicants were finally released by the court on February 10, 2006, after the Director of Public Prosecutions decided to withdraw the charges against them but the other three accused were subsequently prosecuted, convicted and sentenced.
The applicants instituted an action before the Gauteng Division of the High Court, Pretoria, claiming from (the respondent), the Minister of Police, damages arising from the dates of their respective unlawful arrests and detentions. The High Court held that the arrest and police detention of the applicants was unlawful but that the respondent could not be held liable in respect of the period after their court appearance because the applicants’ continued detention was as a result of remands by the court. It awarded damages of R90 000 to the 1st applicant and R50 000 to the 2nd applicant, and directed the respondent to pay their legal costs on the Magistrates’ scale.
The applicants appealed to the Full Court of the same division against the High Court’s refusal to grant them damages for the period after their court appearance but it confirmed the trial court’s refusal to award damages for the period of their judicial detention and dismissed the appeal with costs.
On further appeal, the Supreme Court of Appeal held that the inclusion by the police of the illegally obtained confession constituted a factual but not a legal cause of the applicants’ continued detention beyond June 14, 2005, on which date the applicants could on probability have applied for bail, and would have been released. The Supreme Court of Appeal set aside the order of the Full Court and increased the amount of compensation to cover the period between May 31 and June 14, 2005. In the Constitutional Court, the applicants submitted that the matter concerned whether the respondent could, after a wrongful arrest, be held liable for the entire period of an accused person’s post-appearance detention, if a confession was obtained through torture and if it resulted in the further detention of the accused. They argued that the confession, which was extracted after the arrest, was the only cause of their continued detention.
- Whether the Minister of Police would be held vicariously liable for the entire detention period of persons up to the time of release based on a false confession obtained through torture after their arrest.
- Whether the assault and torture of the applicants by police officers and subsequent false confession leading to their arrest violated their right to freedom and security of the person under section 12 (1) of the Constitution.
- Who bore the onus to prove that there was a justification for the interference with physical liberty of a person in an action based on wrongful arrest?
- What were the relevant factors to consider when determining the amount of damages to award for the deprivation of liberty?
- The applicants sought condonation in terms of rule 32 of the Rules of the Court for their failure to file the application for leave to appeal timeously. The application for leave to appeal had to be submitted by May 13, 2020 but was only filed on May 19, 2020. The explanation proffered for the delay was that legal practitioners were operating under restrictions imposed during the national lockdown period and that that affected the proper functioning of their practices. The explanation for the delay was reasonable and the delay was not long. Condonation was therefore granted.
- The issue of whether the applicant’s detention was consistent with the principle of legality and whether his right to freedom and security of the person in section 12(1) of the Constitution had been infringed was a constitutional matter. The Constitutional Court, therefore, had jurisdiction to entertain the application.
- The finding by the Supreme Court of Appeal that the onus was on the applicants to prove that, even if bail applications had been made, they would probably not have been granted, had introduced a new test. The appeal also turned on the Supreme Court of Appeal’s conclusion that the applicants’ failure to apply for bail constituted a new intervening act. It was thus in the interests of justice for the court to unravel the confusion that had been created by the Supreme Court of Appeal. An application of the correct test also impacted the merits of the application. The application thus bore reasonable prospects of success.
- The prism through which liability for unlawful arrest and detention should be considered was the constitutional right guaranteed in section 12(1) of the Constitution of the Republic of South Africa (the Constitution) not to be arbitrarily deprived of freedom and security of the person. The right not to be deprived of freedom arbitrarily or without just cause applied to all persons in the Republic. Those rights, together with the right to human dignity, were fundamental rights entrenched in the Bill of Rights. The state was required to respect, protect, promote and fulfil those rights, as well as all other fundamental rights. They were also part of the founding values upon which the South African constitutional state was built.
- The police, like any other state functionary in the country for that matter, were constrained by the principle of legality imposed by the Constitution and could not exercise any power nor perform any function beyond that conferred upon them by law.
- The unlawful deprivation of liberty, with its accompanying infringement of the right to human dignity, had always been regarded as a particularly grave wrong and a serious inroad into the freedom and rights of a person. Sight had to not be lost of the fact that the liberty of the individual was one of the fundamental rights of a [person] in a free society which should be jealously guarded at all times and there was a duty on the courts to preserve that right against infringement. Unlawful arrest and detention constituted a serious inroad into the freedom and the rights of an individual.
- There were two different aspects of freedom; the first was concerned particularly with the reasons for which the state could deprive someone of freedom [the substantive component]; and the second was concerned with the manner whereby a person was deprived of freedom [the procedural component]. The Constitution recognized that both aspects were important in a democracy. The state could not deprive its citizens of liberty for reasons that were not acceptable, nor, when it deprived citizens of freedom for acceptable reasons, could it do so in a manner which was procedurally unfair.
- To succeed in an action based on wrongful arrest the plaintiff had to show that the defendant himself, or someone acting as his agent or employee deprived him of his liberty. An arrest constituted an interference with the liberty of the individual concerned, and it therefore seemed to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.
- It had long been firmly established in common law that every interference with physical liberty was prima facie unlawful. Thus, once the claimant established that an interference had occurred, the burden fell upon the person causing that interference to establish a ground of justification. In a claim based on the interference with the constitutional right not to be deprived of one’s physical liberty, all that the plaintiff had to establish was that an interference had occurred. Once that had been established, the deprivation was prima facie unlawful and the defendant bore an onus to prove that there was a justification for the interference.
- The Supreme Court of Appeal’s decision to relieve the respondent from liability for damages suffered by the applicants after a further remand order was made on June 14, 2005, implied that the obligation on members of the police to make proper and complete disclosure to the prosecutor of the facts relevant to the further detention of the applicants did not exist on the second court appearance. The obligation on the police to disclose all relevant facts to the prosecutor was to be regarded as a duty that remained for as long as the information withheld was relevant to the detention.
- The Constitution imposed a duty on the state and all of its organs not to perform any act that infringed the entrenched rights, such as the right to life, human dignity and freedom and security of the person. That was termed a public law duty.
- In a case where the Minister of Safety and Security (as defendant) was being sued for unlawful arrest and detention and did not deny the arrest and detention, the onus to justify the lawfulness of the detention rested on the defendant and the burden of proof shifted to the defendant on the basis of the provisions of section 12(1) of the Constitution. Those provisions, therefore, placed an obligation on police officials who were bestowed with duties to arrest and detain persons charged with and/or suspected of the commission of criminal offences, to establish before detaining the person, the justification and lawfulness of such arrest and detention. That included any further detention for as long as the facts which justified the detention were within the knowledge of the police official. Such police official had a legal duty to inform the public prosecutor of the existence of information which would justify the further detention. Where there were no facts which justified the further detention of a person, that should have been placed by the investigator before the prosecutor of the case and the law casts an obligation on the police official to do so.
- The police officer’s duty to apply his or her mind to the circumstances relating to a person’s detention included applying his or her mind to the question whether the detention was necessary at all. That information, which had to have been established by the police officer, would enable the public prosecutor and eventually the magistrate to have an informed decision whether or not there was any legal justification for the further detention of the person.
- Public policy was informed by the Constitution. The Constitution valued freedom, and understandably so when regard was had to how before the dawn of democracy freedom for the majority of the people was close to non-existent. The primacy of human dignity, the achievement of equality and the advancement of human rights and freedoms was recognized in the founding values contained in section 1 of the Constitution. Section 7(1) of the Constitution provided that the Bill of Rights enshrined the rights of all people in the country and affirmed the democratic values of human dignity, equality and freedom. Those constitutional provisions and the protection in section 12 of the Constitution on the right of freedom and security of the person were at the heart of public policy considerations.
- If meaning was to be given to freedom as a foundational value of the Constitution and to the right to freedom and security of the person, the police could not be allowed to deprive people of their freedom by so simple a stratagem as behaving in the egregious manner in which they did and then lying low and keeping quiet to see if anything would come to the rescue of the victims of their nefarious deeds. If that was allowed to happen, then police like they did before the advent of the democracy would continue to ride roughshod over the freedoms of the people. Generally, in circumstances like the instant, public policy dictated that delictual liability had to attach, lest a situation where freedom as a constitutional value and the right to freedom and security of the person were devalued arose.
- The unlawful continued concealment by the police of the fact that the confession was obtained illegally provided the applicants with a basis for holding the respondent delictually liable for the full detention period.
- Once it was clear that the detention was not justified by acceptable reasons and was without just cause in terms of section 12(1)(a) of the Constitution, the individual’s right not to be deprived of his or her freedom was established. That would render the individual’s detention unlawful for the purposes of a delictual claim for damages. The approach adopted by the Supreme Court of Appeal, in shifting the onus onto the applicants, constituted an error in law. The Supreme Court of Appeal misdirected itself in holding that the applicants’ failure to apply for bail constituted an intervening act breaking the chain of legal causation.
- The Supreme Court of Appeal erred in refusing to award damages for the full period of detention. The respondent was therefore liable to compensate the applicants for the period of their detention from the date of their arrest, being May 30, 2005, to the date of their release on February 10, 2006. That amounted to eight months and ten days.
- Damages were awarded to deter and prevent future infringements of fundamental rights by organs of state. They were a gesture of goodwill to the aggrieved and they did not rectify the wrong that took place. Money could never be more than a crude solatium for the deprivation of what in truth could never be restored and there was no empirical measure for the loss.
- The following factors were relevant when determining the amount of damages to award for the deprivation of liberty:
- the circumstances under which the deprivation of liberty took place which would include the fact that the arrest was not only arbitrary but was preceded by brutality and torture by the arresting officer;
- the conduct of the defendants, the arresting officer continued to attempt to influence the prosecutor after the unlawful arrest to ensure the applicants would remain in detention despite knowing that such arrest was unlawful; and
- the nature and duration of the deprivation.
- The relevant factors here were that the 1st applicant was tortured by several police officers before he made the confession that led to the deprivation of his liberty. The investigating officer did not disclose the torture and assault to the prosecutor, nor did he inform the prosecutor that the confession was engineered by the assault and torture.
- The circumstances under which the applicants were detained for eight months and 10 days were unpleasant, to say the very least. In addition, they were placed in solitary confinement for two months to protect them from attack and taunting by fellow detainees who believed that they had killed their relatives. No amount of compensation could undo the humiliation and human rights violations suffered by the applicants.
Appeal allowed; respondent had to pay the costs of the appeal, including the costs of two counsel.
- Leave to appeal was granted.
- Paragraph 2(b)(i) and (ii) of the order of the Supreme Court of Appeal was set aside and substituted with the following order:The 1st defendant was ordered to pay:
- An amount of R550 000 to the 1st plaintiff;
- An amount of R500 000 to the 2nd plaintiff;
- The above amounts were to be paid with interest at the prescribed rate from date of the judgment of the High Court, being September 26, 2014;
- Costs of suit, including the costs of two counsel.
Relevance to the Kenyan situation
The Constitution of Kenya, 2010 provides in article 29 (a) that every person has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause. Sub- articles (d) and (f) further provide that every person has the right not to be subjected to torture in any manner, whether physical or psychological treated or punished in a cruel, inhuman or degrading manner. Article 49 (1) (d) provides that an arrested person has the right not to be compelled to make any confession or admission that could be used in evidence against the person.
The National Police Service Act No. 11A of 2011 in the fifth schedule provides that in the performance of the functions and exercise of the powers of arrest and detention set out in the Constitution and this Act or any other law, a police officer shall carry out an arrest and detention only as provided for in law.
It also further provides that a police officer shall accord an arrested or detained person all the rights set out under Articles 49, 50 and 51 of the Constitution.
In Alex Muthinji Njeke & Another v Attorney General  eKLR, the court in holding the Attorney General vicariously liable for the assault, battery and negligence of police officers towards civilians held that:
The defendant could only be vicariously liable if the officers were acting in the course of their duty. A master was liable for the acts of his servant committed within the scope of his employment or, to be more precise in relation to a policeman within the exercise of his duty. The master remained so liable whether the acts of the servant were negligent or deliberate or wanton or criminal. The test was whether the acts were done in the course of his employment or, in the case within the exercise of the policemen’s duty.
The same principle of law, which should be applied in determining whether the Attorney General was responsible for the acts of the policeman was; were those acts committed in the course of the duty of the policemen, no matter whether they were committed, contrary to the general instructions. A policeman could still be acting in the course of his duties if the manner in which he carried out his duty was a wrong one, but nevertheless he was still carrying it out.
The South African case is thus jurisprudential as it holds that the minister of police is vicariously liable for the entire detention period (both police and judicial detention) of persons arrested unlawfully following false confessions extracted through torture and assault. This is because all that is required is for the plaintiff(s) to establish that there was unlawful detention thereby shifting the burden to the defendant who ought to justify the reason for the detention; failure to which there results unjustified deprivation of liberty.